Monthly Archives: February 2018

BBA Amicus Brief in Commonwealth v. Lutskov

On Tuesday, the BBA filed an amicus brief in Commonwealth v. Lutskov (SJC-12411), a case in which the Supreme Judicial Court solicited amici last November. Our brief, written by Meredith Shih of Wood & Nathanson, LLP, on behalf of the BBA Amicus Committee and in close collaboration with Amicus Committee Co-Chairs, Elizabeth Ritvo, of Brown Rudnick, and David Siegel of New England Law | Boston, argues that the application of adult mandatory minimum sentences to juveniles violates the Massachusetts Declaration of Rights.

We are happy to have had the chance to respond to the SJC’s Amicus Announcement, especially in a case that touches on a number of issues with a significant BBA history. Keep reading to learn more about the case, the BBA’s background on these issues, and the brief.

Case Background

Appellant Maksim Lutskov was indicted by a Hampden County Grand Jury on December 27, 2000, as a youthful offender for armed home invasion, two counts of assault and battery with a dangerous weapon, armed assault with intent to rob, assault with a dangerous weapon, and assault and battery. He was tried by a jury in the Hampden Juvenile Court in November 2001, adjudicated a youthful offender on all charges, and sentenced to the statutory adult mandatory minimum sentence of twenty years in prison for armed home invasion, with a number of concurrent lesser terms and ten years’ probation. In 2004, the Appeals Court affirmed the adjudication and the SJC denied further appellate review.

Nearly a decade later, in August 2013, the Appellant filed a pro se Rule 30 (post-conviction relief) motion, which was denied in October 2013. Then, in November 2016, the Appellant filed, with the assistance of counsel, the Rule 30(a) motion that is the subject of the case before the SJC. The Juvenile Court denied the motion in April 2017, the appellant provided timely notice of appeal, and the case was entered on the Appeals Court in July 2017. The Court allowed the appellant’s application for Direct Appellate Review in October 2017.

The Rule 30(a) motion before the SJC raises a number of issues, including that the Commonwealth’s trial evidence was insufficient to permit a youthful offender adjudication as the Commonwealth did not offer adequate evidence to show the appellant was of the appropriate age. The SJC’s amicus solicitation, however, focused narrowly on the second argument presented by the Appellant, which is that Article 26’s prohibition on cruel or unusual punishment bars the application of adult mandatory minimum sentences to juveniles and requires individualized sentencing. The Announcement asked:

Where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in the State prison (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights. See Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013), and Commonwealth v. Perez, 477 Mass. 677 (2017).

BBA Background

Though the BBA has not previously adopted a policy position that relates directly to the argument presented in the brief (that the imposition of adult mandatory minimum sentences to juveniles violates Article 26), we do have a long history of speaking out on criminal justice reform, especially in relation to mandatory minimum sentences, and juvenile justice.

The BBA has been opposed to mandatory minimum sentences for decades, advocating for reform since at least 1989 when we released a report calling attention to the harms wrought by misguided mandatory minimums. Our opposition to these sentences stems from the fact that they prevent judicial consideration of proportionality by rendering one-size-fits-all punishment, often involving unduly long sentences which make reintegration and reentry more difficult, and remove the discretion of judges to impose the context-specific individualized sentences that would ensure the punishment does in fact fit the crime.

In addition, the BBA has a longstanding commitment to juvenile justice. In a 1994 report, The Massachusetts Juvenile Justice System of the 1990s: Re-thinking a National Model, a BBA Task Force discussed the differences between juveniles and adults when considering certain legislative proposals to remove judicial discretion in some hearings for juveniles. That report explained why juveniles were treated differently than adults for sentencing purposes and noted that removing discretion and applying mandatory minimum sentence to juveniles “cast aside certain basic tenets of the juvenile justice system as they have evolved for more than a century.”

Also, in 2013, prior to the Diatchenko decision, the Criminal Law Section reached consensus and set forth principles – later adopted by the BBA Council – on three areas of juvenile life without parole sentencing when considering then-proposed bills. One of those principles provides that, before being sentenced to life without parole, the appellant convicted of first degree murder must have the right to an individualized evidentiary sentencing hearing which considers, in addition to the traditional factors required by law, a number of issues specific to juveniles, including the hallmark features of adolescence and the potential for rehabilitation and capacity for change.

Amicus Brief

In laying out the BBA’s interest as Amici, the brief begins by tracing our history of sustained involvement with issues of criminal justice, especially opposition to mandatory minimums, and juvenile justice reform outlined above. Then, the brief moves into the argument, that:

“Under both federal and state constitutional frameworks, the application of adult mandatory minimum sentences to juveniles violates Article 26’s ban on cruel and unusual punishment. To guarantee that all adult sentences applied to juveniles are proportional, juvenile judges must conduct individualized sentencing hearings, taking into consideration the factors established in Miller v. Alabama, 567 U.S.

At the federal level the United States Supreme Court has recognized the constitutional differences between adults and youth in sentencing matters. In 2005, the Court held, in Roper v. Simmons, 543 U.S. 551 (2005) that imposition of the death penalty on juveniles under eighteen years old violated the 8th amendment’s ban on cruel and unusual punishment. Five years later, in Graham v. Florida, 560 U.S. 348 (2010), the Court found an 8th amendment violation in sentencing of a juvenile to life without parole in non-homicide crimes. Then, in 2012, the Court expounded on the factors that make youth constitutionally different from adults for sentencing purposes and held that a mandatory sentence to life in prison without parole applied to a juvenile convicted of murder also violated the 8th amendment.

The Massachusetts SJC has relied on a Miller analysis in deciding similar cases. In 2013, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), it held that the mandatory imposition of life without parole for juveniles under eighteen who committed murder violated Article 26’s prohibition on cruel and unusual punishment. The Court, however, also went on to hold that even the discretionary imposition of the sentence also violated Article 26, as it was unconstitutionally disproportionate given the unique characteristics of youth. In a series of cases since Diatchenko, the court has continued to analyze the constitutional distinctions between youth and adults but has left “open for future consideration ‘the broader question whether discretion is constitutional required in all instances of juvenile sentencing.’” Commonwealth v. Okoro, 471 Mass. 51 (2015), citing Commonwealth v. Brown, 466 Mass. 667 (2013)

Most recently, in the Case of Commonwealth v. Perez, 477 Mass. 677 (2017), the SJC held that a juvenile convicted of a non-murder offense or offenses could not be punished more harshly than a juvenile convicted of murder unless, after a hearing that considers the Miller factors, the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder. Applying the constitutional frameworks outlined above, the BBA’s brief urges the court to take the next logical step: answer the question posed in Okoro and Brown in the affirmative, that discretion is required in instances of juvenile sentencing.

Finally, the brief encourages the court to use this opportunity to set forth with clarity what a Miller-type sentencing hearings should require. In Perez, the Court has already provided that such a hearing involves meaningful consideration of three factors:

  1. The particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences;
  2. The family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself; and
  3. The circumstances of the … offense, including the extent of [the juvenile’s] participation in the conduct and the way familial and peer pressures may have affected him.

The brief notes that records of the sentencing should clearly reflect that the sentencing judge considered these factors of youth, as mitigating factors, which would ensure the judges take into account the important distinctions of youth and craft proportional sentences within the bounds of Article 26.

A big thank you goes to our Amicus Committee for their thoughtful analysis of the SJC’s amicus announcement, and especially to co-chairs David Siegel and Liz Ritvo and drafter Meredith Shih! Oral argument is scheduled for March 5, and we’ll be sure to keep you updated.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association


Walk to the Hill Recap and Budget Update

Last week, hundreds of civil legal aid supporters rallied at the State House at Walk to the Hill, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This event annually falls immediately after the release of the Governor’s budget recommendation and kicks off the BBA budget advocacy, which we previewed for you recently, in an exciting fashion. Keep reading for a recap of last week’s Walk, a request for those of you who couldn’t attend, and an update as to how our other budget priorities fared in Governor Charlie Baker’s proposal.

Walking for Justice

Walk to the Hill is coordinated by the Equal Justice Coalition, in which the BBA is an equal partner with the Massachusetts Bar Association and MLAC. Each year, it proves to be one of the largest advocacy events of its kind in the Commonwealth, and we are thrilled that 2018 was no different. Though the final tally is still being counted, roughly 700 lawyers and law students attended this year’s Walk to ask for an increase of $5 million in the MLAC line-item for a total appropriation of $23 million. We are grateful, as always, that the BBA got to be a part of this stunning show of support for access to justice.

Michael Avitzur, BBA Director of Government Relations & Public Affairs, addresses the BBA Walk to the Hill Breakfast attendees

As always, our Walk to the Hill day started off with a BBA Breakfast where we were joined by in-house counsel, solo and small firm practitioners, new lawyers, and dozens of UMass Law Students. At this standing-room-only breakfast, Director of Government Relations Mike Avitzur reviewed the talking points, the $23 million ask, and tips on how to talk to elected officials about civil legal aid. After fueling up on pastries and coffee, the BBA Breakfast attendees headed over to the State House and joined the crowd gathering in the Great Hall for the kick off to the Walk.

The impressive Walk to the Hill turnout has helped to build a solid base of support in the legislature, which increased the MLAC line-item from $15 million to $18 million between 2015 and 2017, even at a tough fiscal time when other-line items were not receiving that level of growth. As you know, the BBA’s own Investing in Justice Report has also been a critical tool in this advocacy, showing the great need for civil legal aid and the positive return on investment the state achieves from adequately funding legal services programs.

Walk to the Hill crowd at the Great Hall

BBA President Mark Smith highlighted the findings of this report in his speech to the crowd, noting both that an increase in state funding is critical to achieving access to justice for all and a smart investment. He also offered a few examples as to why, more than ever, a $5 million increase is necessary, pointing to recent natural disasters, and developments at the federal level, including threats to end federal funding for legal aid and changes to immigration policies, all of which are driving up demand for legal help at the state level.

For example, following Hurricane Maria, thousands of evacuees from Puerto Rico have sought resettlement in Massachusetts, including 2,000 school-aged children who need to enroll in local schools. These students, and their families, undoubtedly have pressing legal needs related to, in addition to education, other necessities like housing and health care.

Mark Smith, BBA President and partner at Laredo & Smith, addresses the crowd

President Smith further honed in on the impact of changes to immigration policies, offering two examples in the Commonwealth focused on students and children. First, he relayed a story from the Executive Director of MetroWest Legal Services, Betsy Soule, who held a Know Your Rights briefing on immigration last year at Framingham High School after school administrators asked her to speak to students, many of whom were very worried about their parents’ immigration status, with some afraid to even continue coming to school lest they risk being confronted by an immigration official. Nearly 400 students attended that event, and when Betsy offered to stick around to take specific questions, 80 students took her up on this. Many students, and their families, are facing incredibly significant consequences due to immigration policy changes, including potential deportation, making access to a lawyer more imperative than ever.

Chief Justice Ralph D. Gants also made the connection between immigration policy changes and the need for increased funding for civil legal aid. He gave a number of striking examples as to why $5 million more than last year is needed, noting a dedicated mother of two from El Salvador who cleans Boston offices from 5pm to 2am now faces deportation and separation from her family as her Temporary Protected Status has been suddenly dropped, and a teenage girl who aspires to be an architect but may have to drop out of high school early to support her younger sisters if her parents are deported, as well as a DACA “Dreamer” who has been in the country since she was 7, is enrolled at Northeastern University and whose future is now up in the air. In his powerful remarks, the Chief Justice concluded that “it has never been more important for our brothers and sisters who are poor, undocumented, or displaced to have access to attorneys who can enforce and defend their rights, articulate their claims and defenses, and advocate their cause.”

Chief Justice Ralph D. Gants of the Supreme Judicial Court addresses the crowd

Individuals at the Walk also heard inspiring speeches from EJC Chair Louis Tompros, of WilmerHale and MBA President Chris Sullivan who both highlighted the special role that lawyers play in achieving justice. EJC Chair Tompros noted that legal aid lawyers are “absolute superheroes,” but they needed more resources to meet the great need for services in the Commonwealth, and President Sullivan noted that lawyers have a special duty to ensure that “justice for all” is more than just an empty slogan.

Finally, the crowd was lucky enough to hear a striking personal account of the importance of legal aid from Danielle, a client of Greater Boston Legal Services (GBLS). Danielle relayed her harrowing multi-year struggle to get much-needed benefits for her daughter with sickle-cell disease. She noted that “everyone that touched my case genuinely cares about my daughter,” and that having GBLS in her corner allowed her to focus on the health of her daughter, while letting the lawyers take care of the legal needs.

After that moving and energizing kick-off ceremony in the Great Hall, the 700 lawyers-turned-activists received instructions from Jacquelynne Bowman, executive director of GBLS, and filtered out to offices all over the State House, to spread the word to their respective legislators.

If you were unable to make it to the State House last Thursday, fear not. There is still time to “Talk to the Hill” by calling (or emailing) your legislators to urge them to support a $23 million appropriation for MLAC. As always, the MLAC FY19 Fact Sheet, EJC Talking Points, and our own Podcast on How to Talk to Your Legislator (about Civil Legal Aid) will give you all the tools you need to make the ask.

Plus, keep an eye out for upcoming BBA e-alerts, where we’ll be calling on members for additional outreach and support at each stage of the budget cycle, on MLAC funding and our other priorities. Speaking of which…

Governor Baker’s FY19 Budget                          

The day before Walk to the Hill Governor Baker released his proposed $40.905 billion FY19 Budget, which reflected a 2.6 percent spending increase over FY18. Even though the House and the Senate are free to go a totally different direction on each and every line-item, the Governor’s budget does set a tone for the debate, and it’s worth checking in on how some of our long-standing budget priorities fared. You can also read our recent FYI9 budget letter to the Governor here.

Governor Baker proposed the same 1% increase in funding to the MLAC line-item as last year, making the total proposed appropriation $18.18 million. This, of course, falls quite short of the $23 million ask, but armed with all of the above reasons for why increased civil legal aid funding makes sense, we’ve been able to achieve significant funding beyond the initial proposal in years past. This is what makes your Talk to the Hill and e-alert actions over the next few months so important!

The Governor’s overall Trial Court appropriation of $668.53 million signaled his understanding of the importance of an adequately funded judiciary, but falls $3.4 million short of maintenance funding. We are hopeful that the Legislature will build upon the Governor’s recommendation by adding at least that amount.

The Governor also included additional funds for the Probate and Family Court, which should prove especially helpful given the dire shortage of legal assistance in Care and Protection cases currently plaguing the state. And on the statewide expansion of the Housing Court, where the Governor has showed strong leadership, we were thrilled to see this leadership continue! You may recall that, following four years of advocacy, statewide expansion became a reality last year, when both $1 million in funding and authorizing language were included in the FY18 Budget. As we’ve outlined, in order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the Tenancy Preservation Project and Lawyer for the Day. As such, we are seeking $2.6 million in the FY19 budget to ensure the expansion runs smoothly and efficiently. The Governor recommended this full $2.6 million appropriation in the Housing Court Expansion line-item, and we will make the call for the House and Senate to include this amount in their budgets as well.

As we mentioned, the release of the Governor’s budget is just the first step in a months-long process, and the next major step doesn’t come until mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. Be sure to check out our Geeking Out on the State Budget Podcast for a “101” on the Massachusetts Budget Process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

DA Marian Ryan, Rep. Chris Markey and ACLU’s Rahsaan Hall Discuss Criminal Justice Reform in the Commonwealth

We have spent this entire legislative session focused on the debate over criminal-justice reform.  As we’ve noted here, we released a report last fall, No Time to Wait, in the run-up to the floor debate and vote held in both the State Senate and the House.

Now that both bodies have produced their own blueprints for reform, the next step—hashing out compromises on the many differences between the House and Senate bills—is in the hands of a six-member conference committee appointed toward the end of 2017.  Their work, as is typical, is being conducted behind closed doors, offering little insight into their progress toward final legislation.

So it was informative and timely for us to welcome three major players in that debate to the BBA this week, to get their takes on what they’d each like to see as part of a criminal-justice package, and how they see the issues from their perspectives:

  • Since 2013, Marian Ryan has been the District Attorney for Middlesex County—the largest county in Massachusetts. She broke with the rest of her colleagues to endorse the Senate’s criminal-justice bill, and she recently made news with her decision to instruct her ADA’s to forego cash-bail requests in non-violent, low-level cases in the district court.
  • State Representative Christopher Markey previously served as vice-chair and acting co-chair of the Legislature’s Judiciary Committee, and on the working group for the Council of State Governments’ (CSG) recent review of the Massachusetts justice system. Following 16 years in the Bristol County DA’s office, he now operates his own law practice.
  • Rahsaan Hall, former co-chair of the BBA’s Civil Rights & Civil Liberties (CRCL) Section, is the Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. In that capacity, he is one of the state’s leading advocates for broad and durable criminal-justice reforms. Rahsaan previously worked as an ADA in Suffolk County.
  • Natashia Tidwell of Hogan Lovells, current co-chair of the BBA’s Civil Rights & Civil Liberties Section, moderated the discussion, which was sponsored by both the CRCL Section and the Criminal Law Section.

CRCL Co-Chair Natashia Tidwell with panelists Rahsaan Hall, DA Marian Ryan, and Rep. Chris Markey

Tidwell started by asking each panelist where they saw the most-pressing need for reform in the current system, and Rep. Markey pinpointed drug offenses—including the importance of a shift toward a public-health approach, and away from “tough on crime” policies that have ignored the need for treatment.  Our criminal-justice system isn’t equipped to act as a social-justice system, but the tools are there to direct individuals toward resources that can support them; we just need to be more creative and provide incentives for all stakeholders—judges, prosecutors, defense attorneys, and lawmakers—to act on them.

For Hall, racial disparities in the Commonwealth must be addressed immediately.  What we have now, he says, is more of a criminal-legal than a criminal-justice system, because justice is being denied to so many.  These disparities—which are among the worst in the nation for black defendants and the absolute worst for Latinos and are exacerbated at every point of contact—undermine the argument that our incarceration rate is lower than most other states.  He outlined data showing that mandatory-minimum sentences help drive that problem.  For example, three-quarters of prisoners serving such sentences for drug crimes are people of color.  (These same disparities were addressed in the BBA Report, which reiterated our opposition to mandatory minimums and called, once again, for their repeal in all drug cases.)

DA Ryan talked about her efforts to treat defendants as individuals and focus more on preventing recidivism rather than pushing cases through the system en masse—which she sees as merely kicking the can down the road.  By the time someone is processed through a DA’s office, something has gone very wrong in their life, and frequently it’s the result of co-occurring problems such as substance abuse, mental-health, or social disorders.  She advocates for new approaches to break the cycle of recidivism, which is too often a multi-generational one.

One such alternative approach the DA has embraced—overcoming her own initial skepticism, she said—is restorative justice, which brings both victim and offender together, alongside law-enforcement and a judge, but outside the court system.  (The BBA’s PILP program held a symposium on restorative justice in 2016.)  DA Ryan has observed these “circles” and witnessed transformation there unlike any she has seen in the traditional justice system.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

When asked what reforms they’d like to see included in legislation, Hall said we need to act on “front-end” reforms—such as keeping people from entering the justice system in the first place and reforming charging practices—as opposed to the back-end focus that the CSG group settled on.  He feels an urgency now, because while the pendulum has swung toward consideration of smarter criminal-justice policies, he fears that this year’s legislative package may be the last opportunity to achieve significant change for the next decade.

Rep. Markey returned to mandatory minimums, arguing that while there is a place for such sentences in a prosecutor’s arsenal—such as in helping to make a case against a violent offender—they can produce unjust and “ridiculous” imbalances, for example when a drug offense produces a longer sentence than the rape of a child.  He’d like to see legislation address that, perhaps in part by requiring judicial findings or allowing part of a mandatory minimum to be served under community supervision (although he worries that we have too many people on probation already).  But he also feels that prosecutors have the tools they need to handle their cases, even if mandatory minimums went away entirely.

He further decried the increase in collateral consequences that ex-offenders face and argued that judges should have the authority to deal with charges in a way that obviates them.  DA Ryan added that her office offers diversion to defendants for drug crimes, juvenile offenses, and young-adult offenders, so as to relieve them of the burden of collateral consequences, where appropriate.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

Both DA Ryan and Rep. Markey said that, in order for meaningful reforms to occur, all stakeholders in the system must be willing to yield some of their power for the greater good.  And in response to a question from former US Attorney Carmen Ortiz, they both agreed that people need to step outside their comfort zones and addressed the issue of educating law enforcement on best practices: The DA said she and other law-enforcement officials she’s worked with in Middlesex County have been able to do that.  And Rep. Markey singled out police officers, who he said were more professional than ever these days, and understand that sometimes the people they encounter just need a second chance.

On that note, we hope this constructive dialogue is mirrored across the street within the conference committee.  We look forward to their end product, and we hope that they will move forward on each of the six keys issue areas that our No Time to Wait report addressed.

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: SJC holds judges can consider victim statement in sentencing

Last month, the Massachusetts Supreme Judicial Court made a landmark ruling on victim testimony, holding in Commonwealth v. McGonagle that judges can consider the sentence recommendations of crime victims. The ruling feels especially timely given the recent national attention on the role of victim testimony, and the judge, in the Larry Nassar Abuse case.

Here in the Commonwealth, state law has allowed victims to appear in court to share personal accounts and recommend a sentence for the past two decades. Massachusetts General Law, 258B, Section 3(p) permits “victims, to be heard through an oral and written victim impact statement…against the defendant about the effects of the crime on the victim and as to a recommended sentence.”  In McGonagle, an assault and battery case, the victim recommended a sentence to the judge at the sentencing hearing, and the defendant thereafter challenged the portion of M.G.L. 258B which permits the victim to recommend a sentence.

The challenge argued that consideration of the victim’s recommended sentence violates the 8th amendment of the U.S. Constitution and Art. 26 of the Massachusetts Declaration of Rights, which prohibits cruel and unusual punishment as well as the constitutional guarantee of due process. Part of the Defendant’s argument relied on the 2016 Supreme Court decision in Bosse v. Oklahoma, which precluded the use of victim sentencing recommendations to the jury in a capital punishment case.

The SJC ultimately distinguished the constitutional concerns related to the jury phase of a capital murder trial from the presentation of evidence to a judge in a non-capital case.  Justice Lowy’s opinion for the unanimous court concluded that “[w]e all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant’s due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.”

You can read the full opinion here.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association