Posts Categorized: indigency

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Access to Justice Commission Restarts

The start of the BBA’s program year and the new SJC session also coincide with the new seating of the Massachusetts Access to Justice Commission.  Now in its third iteration, the Commission is looking to build on its substantial work.  Last year alone, the Commission accomplished the following (and more!):

  • Legal Services Funding: Supported an increase in appropriations for the Massachusetts Legal Assistance Corporation (MLAC), helping achieve a $1 million increase. The BBA was also instrumental in this push, led by the work of Past-President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, D. Smeallie.  The Commission also explored alternative funding sources, especially from federal grants.
  • Increasing Pro Bono: Supported the state’s participation in a new pro bono website, Mass Legal Answers online, org. The Boston Bar Foundation (BBF) is proud to be helping out with funding and the Association is doing its part to educate the bar about the initiative, which promises lawyers the opportunity to provide “pro bono in your PJs.”  The concept is simple: in brief, individuals with legal questions who meet certain requirements, such as income limits, can create an account and enter their legal questions into an online database.  Licensed lawyers interested in pro bono work can also create an account where they can log in to the question repository and select questions to answer.  Check out the site and volunteer!

The Commission also continued to promote [?] pro bono representation, such as through its Access to Justice Fellows Program, which helps facilitate pro bono work by senior and retired attorneys and by expanding the pilot appellate pro bono program statewide.

  • Improving Access to Justice: Worked on revising forms and rules to promote clarity and accessibility for unrepresented litigants.  The Commission also supported statewide expansion of the Housing Court, a movement  the BBA has advocated for as well, to ensure that the roughly 1/3 of the state not covered by the Housing Court gains access to this valuable resource.  Finally, the Commission supported the work of the 100% access national movement, which calls for the development of state justice systems providing self-representing individuals with 100% access to effective assistance in dealing with essential legal problems.
  • Exploring Expanded Roles for Non-Lawyers: Two subcommittees explored the roles for social services providers and non-lawyers generally in the justice system.

Last week, we were privileged to get a preview of the upcoming year for the Commission from Co-Chair and SJC Justice Geraldine Hines, who listed statewide Housing Court expansion, 100% access to justice, continued pro bono efforts, and implementation of Mass Legal Answers Online as some of the major initiatives for the 2016-17 Commission.  She explained that she felt the Commission’s biggest challenges were in establishing a pilot program for non-lawyer advocates in court and in working with the courts to balance convenience with privacy protection with the release of the uniform rule regarding online access to court records, an issue with which the BBA has been very involved.

The Non-Lawyer Roles Committee is working to find the best way to have non-lawyers appear in court on behalf of indigent clients.  Justice Hines explained that some of their concerns include who should train and supervise the service providers, whether they need to be licensed in some way, and how to address rules that limit legal practice to those who passed the bar.  They also need to consider how to protect the public from malpractice and whether non-lawyer practitioners could have greater impact in certain courts where it could be especially unlikely or difficult for someone to otherwise secure representation.

On September 22, the Commission held its first meeting of the new program year. We were pleased to hear updates on MLAC’s application for a grant from the Massachusetts Office for Victims Assistance (MOVA) under the Victims of Crime Act (VOCA), and that the goal of 100% access was likely to be included in the Trial Court’s forthcoming Strategic Plan 2.0 for formalized consideration and implementation by the courts.  We were excited to see a presentation by Rochelle Hahn of the Massachusetts Law Reform Institute (MLRI) on Mass Legal Answers Online, demonstrating its operation and functionality for both lawyers and advice-seekers.  It promises to be an easy and efficient way to match those in need of advice with those who can provide it, requiring minimal effort from either side.  In addition, the ABA is providing malpractice insurance for participants.

Finally, Executive Director of the Massachusetts Board of Bar Examiners, Marilyn Wellington, presented on the implementation of an access to justice question on the Massachusetts bar exam and the 2018 transition to the uniform bar exam.  Massachusetts became the first state in the country to add access to justice to its bar exam when the SJC approved a rule to require a question on the topic in 2014, and the July 2016 exam was the first to incorporate it.  As Wellington explained, the rule requires that at least one essay question be on the topic of access to justice, and it can also be incorporated into other questions.

While the results are not due out until mid-October, the question is already having an impact as Wellington reported anecdotally that she has heard from local law schools that they have added classes or course components on access to justice as a means to preparing their students for this element of the exam and educating them on these important issues.

However, the Massachusetts bar exam will soon undergo changes as the Board of Bar Examiners recently announced that it will be adopting the Uniform Bar Examination (UBE), effective in 2018.  The UBE tests only generally accepted legal principles—not state-specific law.  Massachusetts is the 25th state to adopt it, and its hallmarks include a greater focus on practice-readiness and the ability for test-takers to apply for admission in any of the states in which it is used, giving them more flexibility.  While the UBE does not currently include an access to justice question, Commissioners discussed the possibility of reaching out to the test makers about the possibility of adding the topic in the future.  In the meantime, Wellington announced that Massachusetts is looking into requiring a pre-admission online course on state law and including access to justice issues.

All this and it’s still only September!  We can’t wait to see how these items develop over the year and look forward to keeping you in the loop on all of the Commission’s work over the course of the year.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Welcome Back SJC

 

The start of our program year coincides with the start of the new session of the Supreme Judicial Court, which runs until May 2017.  The Justices held their first oral argument on September 6, when Chief Justice Ralph Gants welcomed three recently confirmed justices to the bench for the first time – Frank Gaziano, David Lowy, and Kimberly Budd who replace retired Justices Frank Spina, Robert Cordy, and Fernande Duffly.  They join returning justices Barbara Lenk, Margot Botsford, and Geraldine Hines, the latter two of whom face mandatory retirement in 2017.

Here are some cases we’ll be keeping a close eye on this session:

Mandatory Minimum Sentencing

The first case of interest, Commonwealth v. Laltaprasad (SJC-11970), was actually argued last session, but the Court waived its 130-day rule, which requires it to issue a written opinion within 130 days after argument (or submission without argument), and still has not issued its holding.  The case revolves around Superior Court Judge Shannon Frison’s departure from the mandatory minimum sentence for drug crimes of which the defendant was convicted.  On July 23, 2015, the defendant was convicted of possession with intent to distribute heroin, subsequent offense, under G.L. 94C §32(b), and possession with intent to distribute cocaine, subsequent offense, under G.L. 94C, §32A(d).  At sentencing, the Commonwealth recommended 3.5 to 5 years in state prison.  The court departed from the mandatory minimum of 3.5 years in state prison required by G.L. 94C, §32A(d), and G.L. 94C §32(b), and instead imposed a sentence of 2.5 years in the house of correction, explaining in its memorandum of sentence departure:

(1) The defendant does not have a prior conviction for drug trafficking at seriousness levels 7 or 8; and

(2) The facts and circumstances surrounding this matter warrant a lesser sentence.  Specifically, the defendant was arrested with less than 1 gram of the controlled substances.  Further, the defendant was severely injured when the other individual shot a firearm at him.  He suffered 11 gunshot wounds and endured 21 surgeries prior to trial.  Given both the relatively small amount of contraband involved in this arrest and the extreme medical condition of the defendant, the Court will depart downward and impose a sentence of 2.5 years in the House of Correction.

The Commonwealth appealed this decision, arguing that the judge had no discretion to depart from the mandatory minimum sentence because the Legislature has exclusive power to prescribe sentencing penalties, and that separation of powers principles preclude a judge from disregarding the Legislature’s directive.  The Commonwealth also argued that sentencing guidelines recommended pursuant to G.L. c. 211E, which permit a judge to depart from a mandatory minimum sentence, have never been enacted by the Legislature, and thus could not be applied in this case.

In late December, the SJC solicited amicus briefs on “Whether a sentencing judge has discretion to depart from the mandatory minimum terms specified in G. L. c. 94C, § 32 (b), and § 32A (d), under the sentencing guidelines recommended pursuant to G. L. c. 211E or otherwise.”  A large number of organizations submitted amicus briefs making various arguments opposing mandatory minimum sentences, including separation of powers in government, the need for judicial discretion, individualized  and proportional sentencing, and the disparate impact of mandatory minimum drug laws on minority populations.  They also explained that mandatory minimums did not adequately serve the primary purposes of sentencing and argued for safety valves, similar to those in the Federal system and a number of other states, that permit judges to depart from mandatory minimum sentencing schemes under certain circumstances.

Until the decision is issued, it remains unclear why the SJC chose to take this case.  On one hand, it seems clear that the lower-court judge did not follow the law in her sentencing memorandum.  Or did the SJC see here an opportunity to make changes to the current state of mandatory minimum sentencing in the Commonwealth?  From a policy perspective, the BBA has long opposed mandatory minimum sentencing, so we are particularly interested to see if the Court uses this case as a vehicle to move the ball on this issue.

Drug Lab Scandal Solutions

Bridgeman v. District Attorney (SJC-12157) is the latest in the string of cases related to the Annie Dookhan/Hinton Drug Lab scandal, in which convicted chemist Annie Dookhan tainted tens of thousands of drug samples submitted for analysis in criminal cases.  This story broke publicly around 2012, and since then, the Court, CPCS, and the seven District Attorneys (DAs) with affected cases have all struggled with how to handle the voluminous issues that arose.  First, there was the issue of case identification.  Attorney David Meier was assigned the task of gathering information from the drug lab records.  He found that roughly 40,000 samples were affected by Dookhan’s actions.  Over time, that list has been translated into a list of more than 20,000 individuals whose cases remain in limbo.  While the SJC has chipped away at this case slightly, such as through the hard work of a number of retired judges, including BBA Council member, Judge Margaret Hinkle, conducting special drug lab hearings, the remaining numbers are still considerable.

In 2014, the SJC held in Commonwealth v. Scott (SJC-11465) that every person convicted with Annie Dookhan serving as either the primary or secondary chemist was entitled to a presumption of government misconduct tainting their case, meaning that they wouldn’t have to prove that Dookhan acted illicitly in their specific cases.  In their brief for this case, CPCS recommended a “global remedy” to presumptively vacate all convictions of the impacted defendants, with exceptions in a small number of certain cases.

The current case, Bridgeman has been addressed in pieces.  In May 2015, the SJC issued its decision on one issue – whether Dookhan defendants who wanted to withdraw guilty pleas could face additional sanctions.  The Court created an “exposure gap” to prevent chilling of defendants bringing their cases, such that defendants seeking post-conviction relief could not be convicted of more serious offenses or face harsher sentences than previously imposed.  The remaining issue to be addressed in the still pending Bridgeman case (SJC-12157) is whether there has been unconstitutional delay in dealing with the class of cases impacted by the Dookhan scandal, given that this case was filed in 2015, nearly 15 years after the misconduct began, and four years from the public revelation.

We are very interested to see how the Court deals with this case.  Will they adopt a “global solution”?  Or will they opt to handle the more than 20,000 cases on a case-by-case basis?  If the latter, how will the justice system (courts, appointed counsel, DAs, …) handle a potentially unwieldy number of these appeals by Dookhan defendants?  How will impacted defendants be given notice of this outcome and of their rights?  This case seems to carry even greater potential significance given the revelations of evidence issues in the Sonia Farak drug lab scandal and, most recently, the Braintree Police Department.

Bail Considerations

The third case on our radar is Commonwealth v. Wagle (SJ-2016-0334), on whether it is a violation of the state and federal constitutional guarantees of equal protection and due process of law to hold  an impoverished defendant in jail before trial because she cannot afford money bail (see the Petition for Relief here).  The case is the latest in a series of cases (see, e.g. Commonwealth v. Henry) and discussions on costs and fees in the criminal justice system generally.

In this case, a Single Justice (Hines) issued an interim order, decreasing the bail amount and granting leave to her attorneys to file a revised petition in 30 days (by September 24, 2016), making arguments for “systemic relief” for the class of similarly situated individuals.  Justice Hines requested that the amended petition focus “specifically on the terms of the Massachusetts bail statute and how it is being applied by Massachusetts judges, and why the defendant claims that our statute and its application are unconstitutional.”  After reading this petition and a response from the Commonwealth, and permitting both sides to be heard on the question of reservation and reporting, the Single Justice will consider whether this case should go before the full panel of the SJC.

We’ll be keeping a close eye on this case and the discussion of fees in the criminal justice system generally.  It is important to remember that the courts are only one player here, as we are also looking forward to seeing the criminal justice reform proposals in the Legislature emerging as a result of the forthcoming Council of State Governments report.

Those are just three of a number of cases we are watching, and we can’t wait to see what other issues the SJC takes on this session, as well as what impact, if any, the changing personnel on the Court will have.  We look forward to following up with you on these cases of interest and telling you about more throughout this SJC session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association