Monthly Archives: November 2019

SJC Considers Shortage of Lawyers to Represent Indigent Criminal Defendants

We’ve written here before about a set of three cases in Hampden and Worcester Counties which highlight the shortage of available attorneys to represent indigent criminal defendants, as the Constitution requires.

The BBA submitted an amicus brief on the issue to the SJC, as we did in 2004— the last time the Court heard a similar case.  We urged them to act decisively to address this constitutional crisis, which was triggered, once again, by underfunding of the Commonwealth’s commitment to the right to counsel enshrined in Gideon v. Wainwright.

On November 7, the SJC held 2+ hours of oral argument on three cases. Although the BBA brief was not cited by name, justices referred to our argument that an increase in the hourly rates offered to private attorneys who handle indigent criminal defense could provide a resolution to the problem. They also brought up our point that public-safety concerns are heightened where, as here, prosecutors seek to hold the defendant on dangerousness grounds.

Much of the discussion centered on the so-called Lavallee protocol, as set forth in that 2004 case. The protocol calls for defendants to be released after 7 days if no attorney can be appointed, and charges to be dismissed, without prejudice, after 45 days. 

Attorneys differed over whether it still provides a workable solution, and over whether the justices should view it as a way to ensure defendants’ rights are honored, or as a way to impose consequences when they are not.

The was no agreement over whether the Lavallee decision applies to the current situation, how such a decision is to be made by the courts, what (if anything) should replace Lavallee, nor whether the SJC can exercise its superintendence authority to increase hourly compensation rates in order to increase the supply of attorneys accepting indigent-defense cases.

Also at issue — though the BBA brief took no position on it — was interpretation of the SJC’s 2017 Brangan ruling, which holds that, in making bail decisions, judges must take into account the defendant’s ability to pay, and, when imposing bail at a level that a defendant likely cannot pay, must explain why there was no other way to guarantee the defendant’s appearance.

You can read our live-tweeting of the oral argument, and you can watch the full video. A decision is expected by March — coincidentally, just as budget discussions at the State House begin to heat up.

-Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Public Charge, DACA at the Supreme Court, and the “Remain in Mexico” Policy

We continue to monitor developments on immigration policy, especially at the federal level, in keeping with our adoption in 2018 of broad immigration principles. Today, we present updates on a number of related fronts.

First, earlier this month, the Department of Homeland Security proposed new regulations that would increase a broad array of fees associated with immigration applications. 

Although some fees would actually see a decrease, the citizenship application fee would rise from $640 to $1,170, for example, and Deferred Action for Childhood Arrivals, or DACA, applications would go from $495 to $765.

Such changes would be counter to our immigration principles; in the report accompanying them, we wrote:

For people seeking an immigration remedy, the individual liberty interest at stake is “grave,” and so the accompanying protections—constitutional as well as statutory—must be potent. Immigrants face barriers to access to the administrative immigration system established by Congress … when applicants for immigration benefits are charged prohibitively high fees. These barriers call into question whether the constitutional rights of Due Process and Equal Protection applicable to all persons, regardless of immigration status, are more illusion than reality.

But they also run afoul of a position we took in 2008, when we endorsed an ABA resolution declaring (in part), “Fee levels for immigration and naturalization benefits [should not be] so burdensome as to deter eligible applicants from applying for such benefits.”

The timetable for implementation of this proposed rule has it going into effect, on an emergency basis, on December 2.

Public charge rule on hold

The BBA has been closely following the developments of the public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join. Most recently, we published an Issue Spot blog post citing a new Migration Policy Institute study that detailed exactly how the proposed policy would affect legal immigrants in the U.S.

The most recent update to this policy is that federal judges in three states – New York, California, and Washington – have issued temporary injunctions to prevent the rule from taking effect on October 15, as was planned. The rule is being challenged in several federal courts and more than a dozen state attorneys general, arguing that it discriminates against low-income immigrants and immigrants of color. One of the major concerns is the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and imposing a huge cost on local and state governments.

The public charge rule goes against our Immigration Principles, which state that: “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance”. The rule not only discriminates against low-income immigrants but also deters all immigrants from accessing public services and fully exercising their rights and freedoms.

DACA Arguments at Supreme Court

This week, the Supreme Court heard arguments on what may be one of the most important cases of the year: the decision whether to uphold the Trump administration’s dissolution of DACA.

Enacted in 2012 by the Obama administration, the DACA program was designed to protect undocumented individuals who were brought to U.S. as children. It allows them to work, pursue an education, and be protected from deportation. In September 2017, President Trump declared that the DACA program was “illegal” and “unconstitutional” and initiated the process of dissolving it. Three federal appeals courts ruled that when an administration revokes a policy on which so many people have relied, the administration must provide a fully supported rationale that outlines why, which it did not do in 2017. The Trump administration appealed to the Supreme Court, and that argument took place on Tuesday.

The Supreme Court’s conservative majority signaled that it may back the Trump administration and allow it to shut down the program, affecting 700,000 young people currently protected by DACA.

We hosted a program on this issue in 2017 and are continuing to keep a close eye on it as new developments arise.

Mexico’s Humanitarian Crisis

On Friday, November 8th, the Boston Bar Association hosted Eunice Rendón to give an update on the impact that the “Remain in Mexico” policy has had on refugees, asylum seekers, and migrants in Mexico. Eunice Rendón is the Executive Director of Agenda Migrante and a researcher at the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology).

Ms. Rendón began her talk by providing an overview of the “Remain in Mexico” Policy. The policy is an agreement between the Mexican government and the U.S. government that asylum seekers going through immigration proceedings must remain in Mexico during the process. Ms. Rendón noted that the six Mexican cities where the migrants must remain are the most dangerous cities in the country, with some of the highest rates of homicide. She stated that it is estimated that there are 50,000 migrants in Mexico, but their whereabouts are unknown by the Mexican government. Ms. Rendón also noted that the Mexican government is feeling the strain of deportees, which has increased to 200,000 a year under the Trump administration. 

The migrants in Mexico are being held in two types of shelters: shelters run by non-profit organizations and official Mexican government shelters. Ms. Rendón believes that both shelters lack the capacity to support the influx of migrants, which has risen from 7,000 a year to 60,000 a year over the past four years. She also noted there is tension between the federal government and local governments on the contribution levels to the shelters. The poor conditions in the shelters have allowed criminal organizations to exploit migrants, by forcibly recruiting them into their organizations, leaving young children especially vulnerable.  Importantly, most migrants are not well informed on the dangers of attempting to cross the U.S. border or the challenges associated with seeking asylum in the U.S. The Mexican government has attempted to deter migrants by posting the National Guard at the southern border, but, according to Ms. Rendón, they are not well-trained in immigration enforcement proceedings and are not doing an adequate job.

Ms. Rendón concluded her talk by stating that Mexico has undergone a transition from being only a point of transit in the migratory process to becoming a reception country. The people of Mexico have become fearful of migrants due to the reverberation of xenophobic language coming from the Trump administration. Migrants are now settling into Mexican communities as they await asylum claims in the U.S. In dealing with the changing face of migration, Mexico does not have the resources to respond.

This event was co-sponsored by the Immigration Law Section Steering Committee and the Boston Bar Foundation’s Policy Research and Innovation Fund.

-Michael Avitzur
Government Relations Director
Boston Bar Association

and

Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Right-to-Counsel Coalition Gains Support

This year, the BBA joined a broad coalition seeking to enact a right to counsel in eviction cases for indigent tenants and landlords. This position jibes with our past support for a right to counsel, generally, in civil matters involving basic human needs.

In the past month, both The Boston Globe and SJC Chief Justice Ralph Gants have expressed strong support for legislation to achieve the coalition’s goal.

As the Globe put it in their editorial after citing successful efforts along the same lines in a few U.S. cities, “For renters who don’t have the financial means, the right to a court-appointed lawyer would level the playing field and offer them a better chance of success at staying in their homes.”

At his State of the Judiciary speech on October 30 (read more about the event here), the chief justice endorsed the measure, saying, “I know that there are legislative efforts afoot here in Massachusetts to provide legal counsel for all indigent parties in eviction proceedings, not only tenants but also indigent landlords who rely on the timely receipt of rent to make their mortgage payments and avoid foreclosure, and I hope that by next year these efforts may finally come to fruition.”

The coalition will soon be delivering bill language to the Legislature that would make Massachusetts the first state to offer this right to counsel.

-Michael Avitzur
Government Relations Director
Boston Bar Association

State of the Judiciary

Each year at the John Adams Courthouse, the SJC’s Chief Justice, the Trial Court’s Chief Justice and the Court Administrator all present remarks on their priorities for the coming year.

This past October 30, Chief Justice Ralph Gants of the SJC gave his sixth such address, using the occasion to express his support for a right to counsel in eviction cases and discuss plans to develop a “virtual court service center” to assist litigants who need help navigating the court system.

He also demonstrated his continued concern about lawyer well-being with two new measures, following up on this past year’s report by a special committee the Court had appointed. The chief announced the establishment of a new Standing Committee on Lawyer Well-Being, as recommended in the report.

Second, the SJC will be establishing a pilot mentoring program for newly admitted solo and small firm practitioners. He also called on attorneys to honor their responsibility to be civil, while adding that judges should show deference to requests for extensions.

On other issues, Chief Gants said a new court working group will address best practices in dealing with criminal defendants who have substance-abuse and mental-health challenges, and pledged that the District Court and BMC have made necessary changes to handle the increased caseload once new rules on procedural-amount jurisdiction in civil cases go into effect in January.

Trial Court Chief Justice Paula Carey talked about implementation of the 2018 criminal-justice reform law, saying that new funding will expand evidence-based support services, including community corrections, for high-risk/-need defendants, building a comprehensive re-entry pathway.

She also pledged that no court in the nation is more engaged in a systemic effort to improve initiatives on diversity, equity, and inclusion, both in the courts and in the community at large. All Trial Court departments, she said, are committed to education, training and outreach, including engaging in difficult conversations.

Chief Carey also discussed the importance of tackling the impact on the courts of substance abuse and trauma, saying, “Trauma can be difficult to identify but is ever-present and overwhelming for both the individual and the court. What is often lost is the trauma experienced by employees of the Trial Court. [It is] imperative that we have resources available for court users, judges and staff.”

Finally, Trial Court Administrator Jon Williams talked about the newly-filed bond bill that promises to significantly upgrade the Trial Court’s information-technology capacity.

“We need major capital investment to transform the role of technology in the [courts],” he told the audience. “Working with our legislative partners, an IT Bond Bill was recently filed to meet the wide range of technology needs for the [judiciary to] transition to…eCourts and cybersecurity.”

-Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Appoints Kate Cook to Corrections Spending Commission

This coming year, the State Legislature is planning to take a serious look at corrections spending and evaluate the distribution of funds across the Department of Correction—which administers the state’s prison system—and the 14 sheriff’s departments—which operate the jails and houses of correction.

The recently-enacted state budget for the current 2020 fiscal year establishes a special commission to conduct a comprehensive study comparing existing funding levels and expenses at each state prison and house of correction and providing a recommendation for an appropriate level or allocation of funding. The budget language, in Outside Section 101, designates a seat for a BBA representative, and we are pleased to have appointed former Civil Rights and Civil Liberties Section Steering Committee Co-Chair and member of the Criminal Justice Reform Working Group, Kate Cook.

Kate has extensive legal, policy and budget experience, and is a partner at Sugarman Rogers where she chairs the Government Law practice. In the past, she served as chief legal counsel to Governor Deval Patrick, advising the Governor and executive branch on legal, regulatory, and policy matters. She also has experience as the General Counsel to the Senate Ways and Means Committee, and as an Assistant Corporation Counsel to the City of Boston.

Kate has been active in the BBA’s Civil Rights and Civil Liberties Section for a number of years. She has also served on our Annual Meeting Steering Committee, the Law Day Steering Committee, the Beacon Award Steering Committee, and the Joint Planning Committee. From 2012 to 2015, she was the Governor’s appointee to the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts.

The Corrections Spending Commission will pursue:

  • a review of staffing ratios and employee costs in each state prison and house of correction;
  • an examination of potential ways to increase efficiencies and reduce fixed costs in state prisons and houses of correction;
  • an analysis of the amount spent by the Department of Correction and by each sheriff’s department on mental health and substance use disorder services and the appropriate levels of funding necessary to meet the service needs of incarcerated people;
  • a review of all discretionary programming offered in state prisons and houses of correction, including an analysis of geographical disparities in discretionary programming;
  • an analysis of the 2018 criminal-justice reform law, its impacts on state prisons and houses of correction and best practices to implement its requirements;
  • a review of the physical assets, infrastructure, buildings and communications equipment owned by each sheriff’s department and state prison; and
  • a review of the funding sources for the Department of Correction and each sheriff’s department, including appropriations from the Commonwealth, commissary charges, prison industries, trust fund accounts, intermunicipal agreements, other inmate fees and expenses and other sources of revenue.

The commission is tasked with submitting a written report of its findings no later than September 1, 2020.

The BBA has had a long-standing commitment to promoting a fair and equitable criminal justice system. In October 2017, the Criminal Justice Reform working group that Kate was a part of published a report titled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System”. That report outlines a set of recommendations that touch on bail, sentencing, recidivism reduction, and criminal record laws—many of which were adopted the following year, as part of a broad criminal-justice reform package.

A report published in 1991 titled “The Crisis in Corrections and Sentencing in Massachusetts,” created by the Task Force on Justice (a joint project of the BBA and the Crime and Justice Foundation), outlined our concern with overcrowding in corrections facilities and the growing issue of mass incarceration.

We are looking forward to learning more about state spending and financing in the correctional system today, and we hope the commission’s final report will help advance our efforts to promote a fair and equitable criminal justice system.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association