Monthly Archives: June 2018

The Story of Re-Entry — Bruce Western’s New Book “Homeward: Life in the Year After Prison & The Policy Implications”

Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Imagine living frozen in time for years.  Information is extremely limited.  Your movements are closely restricted.  Your schedule essentially fixed.  Most every part of your life is watched, regulated, and controlled.  This is basically the life of an incarcerated person.  Now imagine that after months, years, and sometimes decades of living like this you’re suddenly released back into the free world with little to no support.  You have to catch up to changes in your community, family, city.  Learn new technology, find a job, find a place to live, and generally figure out what is going on all at once.  Over 40% of recently released persons have reported feeling intense anxiety over something as commonplace as taking public transportation.  Imagine being told to walk in a line every day for a decade and then being thrown into Downtown Crossing during rush hour.

That is just a small peek into the extremely revealing Boston Reentry Study (BRS) – a multiyear effort to follow the lives of about 130 people released from Massachusetts prisons to see how they fared in the year after prison, having served out their sentences, and to possibly understand how they got there in the first place.  The results were detailed in part in the new book Homeward: Life in the Year After Prison, by Bruce Western, a Harvard sociologist and one of the principal investigators of the BRS, whom the BBA was honored to co-host last week, in partnership with Lael Chester and the Columbia University Justice Lab.  Western shared with attendees some of the team’s findings, and helped to lead a discussion on how sound policy could have a hugely positive impact on the lives of the formerly incarcerated as well as society as a whole.

Natashia Tidwell of Hogan Lovells LLP, and co-chair of the BBA’s Civil Rights & Civil Liberties Section, introduces the event.

Explaining that the team’s goal was to “understand in granular detail the transition from prison to community”—a transition that the vast majority of incarcerees will ultimately make—Western described the countless hours of interviews he conducted with study participants to attempt to see commonalities, trends, and potential problem areas to be addressed in policy.  One of the most shocking statistics was that over 40% of participants had seen someone killed, and half had been physically and/or sexually abused.

Here Western raised an interesting point about how society usually likes to draw lines in the sand and make distinctions between victims and perpetrators, but very often it can be the same person, just at different times.  The serious histories of victimizations and trauma found in a majority of study participants is concerning in and of itself, and telling real people’s stories – even people who may have made terrible mistakes or even committed horrible crimes – helps to humanize the conversation and show that you can’t really define someone for what might have been just one thoughtless, careless, or potentially cruel action.  Furthermore, an alarmingly high number of participants had latent or ongoing mental health problems such as depression, anxiety, and PTSD, which were usually made worse while incarcerated due to the lack of proper mental health services available and the general stressors that are constantly present.

Professor Bruce Western, discussing the re-entry research that led to his new book, Homeward.

Western also discussed what a difference stable housing can make in someone’s life.  Naturally, many people return to the same neighborhoods that they lived in before being imprisoned.  When you’re thrown into a world that feels so foreign, it can help to find a small sliver of familiarity.  The problem is that those familiar environments are sometimes what led to imprisonment in the first place, and being around some of the same people, places, activities, and situations can make it very hard to reestablish a life.  At the presentation at the BBA, two of the study’s participants, who had become good friends with Western, discussed this.

John Tavares, a Dorchester resident, and Azan Reid, of Mattapan, both talked about how having more-stable home situations benefited them.  They made sure to surround themselves with positive people who supported them, and avoided those who might bring them into their old habits.  One of their biggest challenges was finding work.  After struggling for a while, Azon ended up starting his own landscaping company, and John became a personal care assistant to a woman with cerebral palsy.  Although they’re both in better places now, they remember the lack of support that they felt when they first got out.  They were suddenly thrust into the world with no idea how to do basic things like get new IDs, and didn’t really have anyone who they felt they could relate to.  That feeling of isolation and worry is one reason they think recidivism rates are so high – when you feel lost and confused it’s easiest to go back to what you know, even if that’s a life of crime.

Sheriff Steve Tompkins, Leslie Walker, Prof. Bruce Western, and study participants Azan Reid and John Tavares, speaking at the BBA, June 20, 2018.

Expanding in part on efforts to combat recidivism, Steve Tompkins, the Suffolk County Sheriff, gave an insider’s look into the criminal justice system by explaining his ultimate vision for corrections around Massachusetts and the country.  He feels we use too many sticks, and not enough carrots.  There’s also just a general lack of opportunities within prisons to access job training, education, and other programming, to not only impress parole boards, but also prepare inmates for life on the outside.  He emphasized that the vast majority of people out there want to find good work, but aren’t able to because they grew up in low-opportunity situations, and got swept up into an unforgiving criminal justice system.

Tompkins decried the wide variety of “linear societal problems that could be improved with more government agency coordination.” Leslie Walker, the legendary and longtime (and outgoing) Executive Director of Prisoners’ Legal Services said we are setting people up for failure—both from childhood, when they don’t get proper services and support, and again, in the criminal justice system, when they’re incentivized to plead guilty, doomed by burdensome requirements, and still don’t get needed support.  Both of them hoped that studies like the BRS are able to better inform policy for legislators and voters alike.

Everyone wants a system that is just. The progress made in Massachusetts’ recent criminal justice reforms are certainly steps in the right direction, but there is always more work to be done.  Using information from studies like the one detailed in Homeward, which is informed by the real lived experiences of men and women who have gone through the criminal justice system, we can better advocate for our fellow Americans to steer people away from the justice system before they enter, properly treat those who do, and then support them by offering a real chance to succeed when they come out, for the good of all of us.

Comments Update: Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules. Indeed, just this month the court released a final version of a rule that incorporated feedback from BBA sections on the proposed version. The Rule – Rule 5(b) of Trial Court Rule XIV: Uniform Rules on Public Access to Court Records on use of the online Attorney Portal – will become effective on July 1, 2018, and can be read in full here.

In October 2017, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records, a Rule with which the BBA already had a long history. In 2016, the BBA established a working group to consider the proposed rule and, along with various sections, submitted substantial comments. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was given only provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,”that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics CommitteeCriminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees were generally satisfied with the substance of the rule itself, but nevertheless highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by stating that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that use of the portal cannot risk the “integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The final version of the terms adopts this recommendation and the revised language now reads: “You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security of the Trial Court’s case management system…”

The Criminal Law Section Steering Committee made a few comments on both the rule itself and the terms. Specifically, the Committee discussed the piece of Rule 5(b) that provides the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted, to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.).

The Committee’s comment related to the terms noted a point of ambiguity in a provision, which stated in the proposed language that one must not leave their computer or work area unsecured while logged in to the portal. Members felt this provision was somewhat vague as drafted (what exactly does it mean to leave a work area “unsecured”?) and redundant, as the Terms provide elsewhere that you are fully responsible for the activity that occurs under your login. In response to this suggestion, the Court removed mention of the “unsecured work area,” leaving it clear that one is fully responsible for all activity that occurs under the login credentials.

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the revised Rule, the language was edited to make this point more evident, and it now makes clear that registered attorneys “shall have access to a portal providing remote access to all nonexempt cases, and a calendar of scheduled events in the cases in which they have entered an appearance” (emphasis added).

In the terms, the Committee thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). The proposed definition described data scraping as “an automated process, or technique, used to extract or collect data from a source, such as a website or applications.” Committee members offered an alternative definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. The new definition in the final version of the terms largely tracks the recommendation and now describes data scraping as “the use of a computer program or other automated process or technique to extract or collect data from the Trial Court’s case management system.”

Finally, the committee members felt the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials. The proposed terms provided that one may be subject to sanctions and referred to the Board of Bar Overseers “if you (or persons you allow to use your login credentials)” use the portal in a way prohibited by the terms. Members thought this was inconsistent with a prior provision which made clear that one is fully responsible for all activity that occurs under one’s login credentials, regardless of whether permission to use was granted. The final version of terms adopts this recommendation and now provides that the consequences for prohibited use apply to attorney use as well as “persons who use your login credentials.”

As always, we are very appreciative of the hard work and expertise offered by the Committee Members and were thrilled that the court adopted many of the suggestions. To learn more, you can read the full comments submitted by the BBA here, and to read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Update: Online Access to Court Records

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Looking Back: The BBA’s History of Supporting LGBTQ+ Rights

 In celebration of Pride Month, and in advance of the Pride Parade this weekend, we wanted to take a moment to trace the BBA’s own long history of supporting LGTBQ+ rights.

To begin, we have to go back nearly 45 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, nearly three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

As you know, the inclusion of public accommodation protections for transgender individuals is at stake on the November ballot, as opponents seek to repeal the law, so be sure to read more about the Freedom for All MA Coalition that’s leading this effort (with the BBA as one of many members), RSVP to this BBA volunteer opportunity, and, most importantly VOTE YES to ensure this law remains on the books!

In addition to being on the forefront of offering antidiscrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

  • In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
  • In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
  • In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, the amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
  • Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, and then-President Julia Huston stated: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a set of bills that would ban the use of “conversion therapy” by licensed professionals on minors. Unfortunately, these important protections did not pass last session, but there is still time this go around. Be sure to visit our new post that explains just why this legislation matters and what you can do to make sure Massachusetts does not miss its chance to join the growing number of states standing up to protect their LGBTQ+ youth in this way.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. We hope you’ll join the BBA in celebrating Pride by recommitting to this fight, and what better way to start than by ensuring transgender antidiscrimination protections remain the law of the land and that Massachusetts LGBTQ+ youth are protected from harmful conversion therapy practices.  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

There’s Still Time to Protect MA Youth from Conversion Therapy

Nearly three years ago, the BBA endorsed legislation that would ban the use of “conversion therapy” on minors by licensed health care professionals. Since that initial endorsement, the BBA has kept you posted on our continued advocacy, presenting testimony at hearings and sending letters urging the Commonwealth to stand up for its LGBTQ+ youth. And last month, we asked you to join us, and MassEquality, in urging for these important protections, requesting you to reach out to your own representatives in honor of the International Day Against Homophobia, Transphobia and Biphobia.

As a brief refresher, this legislation is important because it offers 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 and misleading but downright unsafe. The American Psychological AssociationAmerican Medical AssociationAmerican Academy of PediatricsNational 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.

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.” The BBA has a long history of defending principles of non-discrimination and equal protection, and we are proud to stand with these national groups and local organizations like MassEquality and GLAD in advocating for these important protections for MA LGBTQ+ youth.

While the bill has not yet moved, there is still time to ensure Massachusetts youth have access to these protections. If you haven’t done so already, please call your State Representative, and ask them to do two things:

1) Contact the Chair of the House Ways and Means Committee, Rep. Jeffrey Sánchez, and urge him to report favorably on the Conversion Therapy Ban Bill (H.1190) as soon as possible.

2) Contact Speaker of the House Robert DeLeo, and ask him to make H.1190 a priority and to bring the bill to a vote during the current legislative session, ending July 31.

For more information on just why this legislation is so important, feel free to read our recent letter to the House Speaker and Mass Equality’s handy fact sheet. MassEquality also produced a draft email in support of the legislation, and you can also reference this sample phone script produced for the May 17 call to action. Just make sure to reference updated bill number H.1190 and mention that that you are calling in honor of Pride Month instead!

To date, eleven states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it’s time for Massachusetts to join these ranks!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association