Posts Categorized: justice reinvestment

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New 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

Juvenile Justice Through Diversion

A couple of weeks ago, we were pleased to report on our Juvenile Restorative Justice Symposium, a half-day program focused on restorative justice approaches for young offenders.  Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment. Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator.

Today, we are excited to report on our latest program, a July 19 forum on diversion and evidence-based approaches to juvenile justice, hosted by the BBA’s Civil Rights and Civil Liberties Section along with Citizens for Juvenile Justice.  Diverting juveniles is the practice of referring them to various programs that hold them accountable without having the go through the traditional justice system.  The restorative justice approach explained in our prior post is one example of a diversion approach.  The goal is to hold youths accountable without creating a criminal record.

This is especially important in Massachusetts, which does not permit record expungement.  The day before our program, the Boston Globe posted an informative article on this very issue, explaining the challenges individuals with juvenile records can face for many years after their cases are resolved in the justice system.  On July 12, the Senate supported a bill (S2424) by a vote of 31-9 that would, among other reforms, permit expungement of misdemeanor offenses from juvenile records.

Regardless of whether the bill is enacted, the take-away from our forum was clear – diversion, when executed correctly, can be more effective at achieving justice, promoting rehabilitation, and reducing recidivism than traditional justice systems.  The fact that it avoids creation of a record that can hinder a young people for the rest of their lives is only an added benefit.

DSC_0083 croppedSana Fadel Delivers Opening Remarks

Massachusetts is making progress on diversion, but the presenters made clear that there is still a long way to go.  At this point, Sana Fadel, Deputy Director of Citizens for Juvenile Justice, who’s Executive Director Naoka Carey provided closing remarks, explained that diversion programs are established ad hoc and vary by county.  As a result, we have instances of “justice by geography,” in the words of First Justice of the Middlesex Juvenile Court, Jay Blitzman, whereby geography plays a disproportionate role in determining juvenile justice outcomes (check out his July 20 editorial on juvenile record expungement from Commonwealth Magazine).  This also hinders the collection of clear data on effectiveness and outcomes.  Yet while uniformity is still a goal, Fadel reported that things seem to be moving in the right direction, in large part thanks to support from the District Attorneys who have implemented diversion programs in 10 of 11 jurisdictions.

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Judge Blitzman

One of the key points made by multiple panelists was the need for individualized and graduated responses in diversion.  While diversion done well has repeatedly resulted in positive outcomes, diversion done poorly can have the opposite effect.  The key is to require the appropriate level of engagement for the youthful offender.  Too little and the point doesn’t get across, too much and the diversion program can stifle a youth’s positive connections outside the justice system and build resistance and resentment.  However, with the proper amount of diversion programming, youths exhibit a remarkable tendency to learn from their mistakes, make victims whole again, and avoid future criminal behavior.

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Panelists (left to right): Kara Hayes, Vincent Schiraldi, and Judge Blitzman

Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School’s Program in Criminal Justice, spoke about how he worked to increase diversion as New York City’s commissioner of probation.  Through collaboration with the probation department, schools, courts, police, and even big box stores, the leaders of which he convinced to not prosecute all juvenile shoplifters, he was able to divert 41% of juvenile cases, an increase of more than 15%.  A large part of his success appeared to be driven by his tireless efforts toward bringing the community together to embrace diversion as a reasonable justice system alternative and also by tracking and regularly reporting data demonstrating the effectiveness of his work.

Massachusetts is still far from these levels of diversion, but panelists made clear that it is increasingly being accepted as a reasonable alternative to traditional justice.  Kara Hayes, Chief of Community Engagement at the Suffolk County District Attorney’s Office, reported that 25% of juveniles in Suffolk County are currently diverted before being arraigned.  This seems to place us in a similar position as New York City prior to Vincent’s arrival, and the stars appear to be aligning for further increases.  As Kara explained, diversion programs are also beneficial to victims, who often gain more satisfaction and closure than through the justice system, which can be impersonal and leave them feeling cast aside.  As a result, the Suffolk County District Attorney’s office is starting a pilot diversion program in the county that it hopes to have up and running by the start of the school year.  The pilot will include a dedicated program coordinator whose goal is to continue the thoughtful and strategic expansion of diversion to best fulfill the needs of the community.

We are devoted to continuing to provide thought provoking and timely programs and discussions on these sorts of developing areas of justice.  We hope program attendees left feeling informed and empowered to make an impact and we look forward to keeping you apprised of the latest developments in juvenile justice practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Criminal Justice Reform through Juvenile Restorative Justice

It was quite a week here at the Boston Bar Association and we’ve got you covered here in case you missed any of the action.  First is a write-up from our Juvenile Restorative Justice Symposium, a half day program developed by the BBA’s 2015-16 Public Interest Leadership Program (PILP).  Further below is a breakdown of our Benefits of Judicial Diversity program followed by an explanation of a recent Appeals Court decision on reopening settlement agreements in divorce cases.

PILP assembles an annual class of young attorneys with interest in civic engagement and public service who are looking to embrace the leadership role of lawyers in service to their community, their profession, and the Commonwealth.  PILP participants connect with prominent community leaders at meetings and events, learn about the challenges confronting local organizations and take part in efforts to address specific community needs.  After completing the 14-month program, graduates enter a growing network of accomplished alumni who provide mentoring and support to their successors.

This year’s PILP class took an interest in restorative justice, a model used as an approach to criminal justice and community harm that emphasizes repairing the damage done by a criminal event as opposed to just handing down a punishment.  It is a collaborative decision-making process that brings together the offenders, victims, and other affected community members.  It seeks to hold offenders accountable by acknowledging and taking responsibility for their offenses.  Studies have shown that recidivism rates are significantly reduced for participants in restorative justice programs, and the costs are far lower than traditional court processes such as prosecution and incarceration.

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Erin Freeborn

The symposium began with an introduction by Erin Freeborn, Executive Director of Communities for Restorative Justice (C4RJ).  She explained the four principles of restorative justice, a process that has existed in some form or another since the dawn of human society.  They are:

  1. Voluntary participation
  2. Crime, meaning a violation of people and relationships creating a harm that needs to be rectified.
  3. Inclusion and empowerment of those most affected. Part of the process is to find out how to rectify the situation, sometimes with information (an explanation for why the crime was committed) and/or sometimes with material needs.
  4. An understanding that the harm cannot be undone, but that all parties will strive to make things as right as possible to try to put the situation back into balance and collaboratively restore order.

Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment for the offender.

Traditional ApproachRestorative Justice Approach
What law was broken?  How will the offender be charged?Who has been hurt?
Who did it?What are the victim’s needs?
What should we do to them?  What will be their punishment/sentence?Who is obligated to meet those needs and how can they do so?

Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator who sets their expectations and lays the ground rules:

  • Everyone takes turns talking and has their chance to speak without interruption.
  • There is no hierarchy, so the facilitator or judge, the victim, and the accused individual are all on equal footing.
  • The circle can include supporters of each party, so in the juvenile context this may mean family members or friends of the offender, as well as the victim.
  • Everyone must take part voluntarily and can pull out at any time and insist on the traditional justice methods.
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Panelists discussing juvenile restorative justice

An extensive panel discussion followed with an examination of current applications of juvenile restorative justice in the Commonwealth.  It was moderated by Northeastern University School of Law Professor Susan Maze-Rothstein and featured five leaders in the restorative and criminal justice field:

The panelists began by considering the appropriateness and effectiveness of restorative justice.  There seemed to be consensus that restorative justice can and often does work better than traditional methods, and that once arraignment takes place and juveniles are given a record, their lives are forever changed, so it is especially important to consider carefully what happens before that step.  Furthermore, restorative justice can serve as a means of reconsidering juvenile justice generally and the need to discuss and change behaviors for youths.  As Commissioner Dolan explained, the traditional response was to simply remove youthful offenders from their situation and hold them in detention for a certain amount of time without providing any help to resolve the incident or underlying issues.  Now, thanks at least in part to the ideas underlying restorative justice, there is a far greater focus on intervening with a holistic approach to solve problems – both to restore balance from the incident leading to the detention and also to resolve underlying issues that prompted the behavior.

While the panelists spoke of their positive experiences with juvenile restorative justice in Massachusetts, they also repeatedly spoke of New Zealand, an international leader in restorative justice, which passed legislation to completely overhaul its juvenile criminal justice system in order to focus its time and resources on restorative justice practices.  As Ziyad Hopkins explained from his own research there, the New Zealand law requires that juvenile offenders take part in a restorative justice program before they can possibly enter the court system, and often provides a means for them to avoid the traditional justice system altogether.  As a result, the number of cases in juvenile court dropped by 80% and juvenile arrest rates did as well.

However, best restorative justice practices are still being developed in Massachusetts.  Panelists discussed the importance of protecting confidentiality in restorative justice discussions, especially should the case end up utilizing traditional justice processes.  Potential misuse of restorative justice discussions to fish for evidence would undermine the entire process.  There were also concerns about whether offenders in restorative justice proceedings need representation by an attorney.  On one hand, legal representation ensures that accused juveniles understand the process and that their rights are protected.  As one panelist put it, all diversion programs inherently implicate a certain level of coercion, and thus it is of the utmost importance that a juvenile and their family have someone to explain the process, options, and minutiae to them.  Furthermore, juveniles have underdeveloped verbal and processing skills and the restorative justice process can be intimidating – an attorney assures the offender’s voice is heard.  On the other hand, it starts to make restorative justice proceedings more similar to traditional justice and may stifle the free and willing exchange of ideas these procedures require in order to be effective.

Currently, restorative justice programs vary greatly by location within the Commonwealth.  They have been implemented piecemeal in certain communities and are yet to catch on in others.  The hope seems to be that they will continue to spread on a grassroots level as more communities recognize their value and importance and that eventually legislation may provide for a uniform and adequately funded statewide system.  There currently is legislation pending (S71/H368, An Act promoting restorative justice practices), which panelists supported, though they noted that it stops short of requiring restorative justice proceedings.

The keynote speaker, First Justice of the Middlesex County Juvenile Court Jay Blitzman, has been a pioneer in the restorative justice field.  He told how his views shifted on restorative justice.  When he first heard of the idea as a “hard-charging defense attorney” he was appalled, feeling like youths were giving up their right to have an attorney stand up for their interests.  It was not until he took part in the “circle” process that he realized that in many ways restorative justice was a richer way for young people to be heard.  He found that taking part in the circle made him a more reflective listener, less judgmental, and better able to facilitate traditional justice proceedings.

He noted the importance of engaging youths through restorative justice.  The circle process gives them a voice, balancing accountability with support.  It assists the community both by solving the problem(s) at hand and by bringing the involved individuals more into the community by encouraging them to take responsibility for their actions, devise a solution, and avoid creating a record.  Justice Blitzman described a common scenario in which a juvenile is involved in a domestic violence case against a family member – typically, a parent or sibling.  These cases rarely go to trial, and are often dismissed, but once the juvenile is arraigned, they have a record which can have many negative consequences for their ability to return to their community, such as limits on housing and jobs.  He suggested that an expungement bill currently before the legislature (S64) could fix part of the problem, but noted that the better solution was to avoid creating the record in the first place through restorative justice proceedings.

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Senator Jamie Eldridge

Senator Jamie Eldridge, a legislative leader on criminal justice issues and Co-Chair of the Harm Reduction and Drug Law Reform Caucus, led a lunch discussion on the future of restorative justice in Massachusetts.  He described the aforementioned bills and their status in the Legislature.  As the sponsor of restorative justice legislation himself, he was hopeful that they might move this session and encouraged attendees to reach out to their legislators to voice their support.  However, he was frank that they faced uphill battles to pass in the final month of this legislative session.  He was optimistic that restorative justice measures might be included in a more comprehensive criminal justice overhaul that he predicted would come next legislative session following the full report of the Council of State Governments, which is conducting an in-depth review of the current criminal justice picture in Massachusetts at the request of Governor Charlie Baker, Speaker of the House Robert DeLeo, Senate President Stanley Rosenberg, and Supreme Judicial Court Chief Justice Ralph Gants.

In all, the symposium was a huge success.  The discussion was lively and informative and we are proud to be at the forefront of considering this issue.  We will, as always, keep you posted on what happens with the relevant legislation this session and look forward to reporting on forthcoming criminal justice reforms.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Taking on Tough Issues: Chief Justice Gants on the Judiciary

gants croppedWe recently had the pleasure of welcoming the Chief Justice of the Massachusetts Supreme Judicial Court (SJC), Ralph D. Gants, to our building.  He addressed members of our Council, speaking on a myriad of issues currently facing the court system and the state at large.  We’ve got the recap below, but we also invite you attend the upcoming Haskell Cohn Award ceremony, at which we will be honoring the Chief for his distinguished judicial service.

Known for going out into the community to teach people about the Massachusetts courts and the practical role that they play in our lives, Chief Justice Gants has long demonstrated that he cares deeply about ensuring that the justice system works for everyone. He has actively worked to leverage limited resources wisely and to inspire the commitment of new resources to promote that goal.

Since his appointment to the bench as a Superior Court Judge in 1997, Chief Justice Gants has earned a reputation for scrupulous analytic rigor, intellectual honesty and fairness. Prior to his elevation to the SJC in 2009, he was a strong leader of the Business Litigation Session. Throughout his judicial career, and especially since his appointment as Chief Justice of the Supreme Judicial Court in 2014, he has consistently shown a laser like ability to focus on the core issues in even the most complex of cases. He neither shies away from nor glosses over the most difficult issues, but rather grapples with them openly.  This includes access to justice and pro bono legal service – Chief Justice Gants is a former Chair of the Massachusetts Access to Justice Commission and member of the SJC’s Standing Committee on Pro Bono Legal Services.  In 2012, the BBA recognized him with the Citation of Judicial Excellence.

Here are some of the issues he addressed in his speech:

State Budget

Chief Justice Gants began with some news on the budget.  He analogized the budget process to a baseball game, stating that we were in the later innings and had scored some runs, but still had some more innings to go and work to do to convince legislators of the judiciary’s funding needs.  He acknowledged how challenging the budget situation is; even though the state economy appears healthy by many indicators, most revenue gains are already spoken-for due to constant growth in certain key areas such as health care.

As it currently stands, the Governor, House, and Senate have all released their budget proposals.  A conference committee will shortly be addressing differences between the House and Senate proposals.  Here is a brief breakdown of the line items we are most interested in:

  • Massachusetts Legal Assistance Corporation (MLAC – funding for civil legal aid)
    • House: $18,500,000
    • Senate: $18,000,000
  • Trial Court
    • House: $639,900,000 (includes Specialty Courts module)
    • Senate: $643,484,303 (does not include Specialty Courts module)
  • Statewide Housing Court Expansion
    • House: $0
    • Senate: $1,194,614

Click here for a full analysis of all our budget priorities.

Justice System Reforms

Civil

Chief Justice Gants then discussed reforms currently under consideration for both civil and criminal practice.  Following his lead on the need for  a “menu of options” in civil litigation, each department of the Trial Court (aside from the Juvenile Court), examined their civil practices, and most are in the process of finalizing streamlining proposals that will give lawyers more practice options.  However, the Chief Justice stressed, giving lawyers more choices matters only if lawyers actually take advantage of them.  He encouraged lawyers to try out the new options when they are implemented and hoped that practitioners would be pleased with the outcomes – fair and fast resolutions of their cases on the micro level, and a more efficient court system on the whole as a result.

Once this is accomplished, it may lead to larger systemic changes.  For example, the Trial Court is examining increasing the minimum procedural amount to qualify for Superior Court from $25,000 to $50,000.  This change would approximately represent an adjustment for inflation (the amount has stayed the same since 1986), but would also result in shifting a large number of cases from the Superior Court to the District Court level.  Implementation of this change is currently on hold, at least until devoted civil sessions in the District Courts are operating at peak efficiency.

Criminal

On the criminal front, the Chief Justice spoke highly of the work of the Council of State Governments, which is examining criminal justice policy in Massachusetts at the joint request—and with the guidance—of  the Chief Justice, the Governor, the Senate President, and the Speaker of the House.   The Council will be making recommendations for criminal justice reforms in the Commonwealth in the coming months.

Chief Justice Gants has already taken the lead on this issue in the judiciary, installing best practices for sentencing in all criminal courts.  He explained that going forward, the judiciary is looking more closely at issues such as sentence length and post-release conditions (currently about 40% of people are released from prison without any form of supervision), as well as tailoring sentences individually for each defendant.  The court is also focused on monetary issues, such as determining individuals’ ability to pay court fees and increasing the baseline amount for certain crimes, such as larceny, to qualify as a felony.

Access to Justice

Finally, Chief Justice Gants addressed his work with the Conference of Chief Justices, which recently adopted a resolution as part of a national effort to achieve “100% access to justice.”  While that phrase can mean many things, Chief Justice Gants is focused on maximizing both legal and non-legal resources so litigants can get the help they need, from self-help forms, to brief advice, to full representation from a lawyer, depending on the individual’s abilities and the complexity of their issue(s).  The biggest current challenge is figuring out how to allocate resources to achieve the most effective “triage.”  Other states are working to address the same questions, and he hopes we can benefit from some of their research and innovations.  Meanwhile, Massachusetts remains a leader in access to justice – as recognized by the National Center for Access to Justice’s recently-released 2016 Justice Index, which ranks us second only to the District of Columbia – and continues to expand empowering programs and initiatives, such as opening more Court Service Centers in courts across the state.

As always, the Chief Justice demonstrated his deep knowledge of the courts and justice system at large as well as his energetic push for meaningful and beneficial reforms to assure efficient practice and access to justice for all.  We are extremely pleased to be honoring him at next week’s Haskell Cohn ceremony and hope that you will join us in recognizing his remarkable and ever-increasing achievements.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Three Branches Working Together: The Latest on Section 35 Civil Commitments

On February 8, we were pleased to host a fascinating program, “Combating Drug Addiction: The Latest on Section 35 Civil Commitments.”  Hosted by the Criminal and Health Law Sections, the panel featured Chief Justice of the District Court, Paul Dawley, First Justice of the Lawrence District Court, Lynn Rooney, First Justice of the Quincy District Court, Mark Coven, Massachusetts Department of Mental Health psychologist, Dr. Stephen DeLisi, and general counsel to the Massachusetts District Courts, Joseph Ditkoff.  The program was moderated by two Criminal Law Section members and Trial Court attorneys, Georgia Critsley and Sarah Weyland Ellis.

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So-called “Section 35’s” are a form of civil commitment permitted under G.L. c. 123 §35 for individuals suffering from substance- or alcohol-abuse disorders.  With the ongoing opioid crisis, their usage has skyrocketed.  Whereas about five years ago the courts saw about 5,000 sections per year, today that number is at 10,000 and rising.

In simplest terms, “Sections” allow individuals, such as friends and family of a person allegedly suffering from severe addictions, to seek help from the court in order to force detoxification and treatment.  The concerned individual(s) can even request a warrant from the court to have police find and bring in the individual.  Once in court, it is up to the judge, with the help of a qualified physician, psychologist or social worker, to determine whether the individual is indeed suffering from an alcohol- or substance-abuse disorder and, if so, the level of threat they pose to themselves and others.

Recently enacted uniform court rules provide new clarity on how these procedures should operate.  In a Section 35 hearing, the rules of evidence do not apply – for example, hearsay evidence is admissible — and the judge may inquire of the petitioner as well as accept testimony or other evidence from the petitioner or any other person, including a court official.  Then the judge must “determine whether there is clear and convincing evidence that (1) the respondent is an alcoholic or a substance abuser, as defined in G.L. c. 123, § 35; and (2) there is a likelihood of serious harm, as defined in G.L. c. 123, § 1, as a result of the respondent’s alcoholism or substance abuse, to the respondent, the petitioner, or any other person.”  If the judge finds both of these prongs met, then the court may issue an order of commitment for up to 90 days in “a suitable facility approved by the department of public health for the care and treatment of alcoholism or substance abuse,” with fallbacks to correctional institutions if there are no beds available at these institutions.

As Chief Justice Dawley explained, this is an extremely important time for the Section 35 process, as the Executive, Judiciary, and Legislature have all been working together to clarify and improve these hearings.  Over the summer, the SJC issued an opinion in, In the Matter of G.P., using a footnote to expound on some of the key recent uniform court rules.  Specifically, the footnote confirmed that the standard of evidence for Section 35 hearings is “clear and convincing,” that the rules of evidence do not apply and hearsay is admissible, and that any appeal is to the District Court’s appellate division.  The case also discusses the meaning of a “substantial risk” of “imminent” harm, noting that it does not necessarily mean immediate harm, but rather that “the harm will materialize in the reasonably short term – in days or weeks rather than in months.”

The executive branch made a commitment to expand treatment options, unveiling a new drug treatment unit for women at Taunton State Hospital called the Women’s Recovery from Addictions Program (WRAP).  This move corresponds with a newly-enacted law, H3956, which ends the practice of women being civilly committed under Section 35 to MCI-Framingham, a correctional institution that provided only detoxification without addiction treatment and incarcerated addicts alongside convicted criminals.  As Chief Justice Dawley stressed, 18 months ago the courts had little guidance on civil commitment procedures, and now there are new rules, new legislation, more treatment options, and an explanatory SJC decision.

However, there is still much to be done.  The courts are continuing to work on implementing the new rules and have ongoing communication with the executive and legislative branches.  There are also still plenty of challenges.  For example, the new uniform court rules remove the ability of individuals to self-petition, leaving the courts in a tight spot.  Judge Rooney said she typically sees at least one self-petitioning individual per day and her court has been directing these people to the Probation Department, hoping that the probation officer on duty will fill out the Section 35 petition for the at-risk individual.  While this often works, she noted that it is an increasing burden on Probation and other courts may not have the luxury of a probation officer readily available for this purpose.  She hopes to see a process put in place for these people.

Furthermore, based on anecdotes from the judges and attendees, it was clear that practices across all courts have not been standardized.  While complete uniformity may not be possible or practical, there seems to be a push for closer coordination across the state.  The new uniform rules should help provide that, but it will take time for the courts to work out all the kinks.

In sum, the program did a great job of helping to explain where things stand with Section 35 civil commitments.  While it is clear that there has been great progress recently, and even more in the works, there is also still a long way to go in honing the effectiveness of these proceedings.  We look forward to seeing what else the three branches of state government can accomplish towards easing the opioid crisis.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Senator Brownsberger Talks Criminal Justice Reform at Council Meeting

Today we begin the final countdown to Walk to the Hill 2016 for civil legal aid, which is happening exactly one week from the date of posting, on January 28, from 11:30-12:30 (on-site registration begins at 11:00 am) at the Great Hall in the State House.  So we were very excited to welcome to this week’s BBA Council meeting a key legislator and long-time supporter of legal-aid funding, Senate Chair of the Joint Committee on the Judiciary, William Brownsberger.  Senator Brownsberger began with some background on his legal career.  He spoke of his tenure in the Attorney General’s office where he worked on the Public Protection Bureau and as Asset Forfeiture Chief in the Narcotics and Special Investigations Division.  It was there that he first became interested in the issues of addiction, and began consulting and teaching on criminal justice and addiction issues, which he soon turned to full-time.
IMG_7943It wasn’t long, however, before he became sick of talking about people with addictions, and wanted to talk with them, so he began practicing in drug court.  He explained his philosophy that criminal lawyers play a “sacred role” in court so that every defendant knows they “got a fair shake.”  He described how this experience changed his thinking about criminal justice and supervision, as he witnessed that jail time, followed by over-supervision after release, could “crush people” and keep them from reaching their potential as productive members of society.

The Senator then moved on to discussing his views on the need for criminal justice reform, which have been formed by both his personal experiences and his study of the larger issue.  For example, he shared this stunning statistic: 40 years ago the prison population in Massachusetts state prisons was under 2,000 and had been holding fairly steady for decades.  But between 1975 and the early 1990s, that population increased five-fold to around 10,000 individuals, where the level has more or less remained for the last twenty years.  Senator Brownsberger said when he looked into these statistics alongside legislative reforms made during that time period, he could not entirely link the massive prison population increase to major legislative changes.  He concluded that the increase was actually the result of a general societal “tough on crime” push that affected not only legislators but also police, district attorneys, judges, and the public as a whole.  The question now is, can we dial that back? And if so, how?
IMG_7950Furthermore, if it’s the case that the current incarceration problem stems from a larger systemic shift, it is likely that the Legislature cannot solve it alone.  While the Senator expressed some frustration that major reforms have been delayed in the recent past to await the results of outside studies, he was excited about the recent study on Justice Reinvestment being undertaken in Massachusetts by Pew and the Council of State Governments — and by the potential their work holds for bringing the state’s leaders together on criminal justice reform.  He hopes that the state will pass some limited reform bills this session (what he termed hitting “singles and doubles”, such as easing the burden of post-release driver-license suspensions for drug offenders) and then make a push for major, comprehensive reforms in 2017.

While mandatory minimum sentences – which the BBA has long opposed — are certainly a part of the problem, the Senator explained that he felt their impact was sometimes overstated, as they are responsible for less than 20% of the inmate population at both prisons and houses of correction.  He hopes to:

  • increase prisoners’ ability to earn “good time” in order to ultimately shorten their sentences
  • re-classify certain inmates into lower-security facilities as their release nears, in order to better prepare them for re-entry, and
  • rework probation and parole by reducing or eliminating fees and addressing the problem of redundant dual supervision of one ex-offender by both agencies.

These and other steps are aimed at revamping the justice system to make it more supportive of successful re-entry.

We thank the Senator for his insights into the criminal justice system and look forward to working with him on future reforms.  In the meantime, we hope that you will join us at Walk to the Hill for Civil Legal Aid on January 28 to hear speeches by BBA President Lisa Arrowood, MBA President Bob Harnais, and state government leaders and then meet with your State Senator and Representative.  Tell them how much civil legal aid funding means to you, voice your support for appropriating a much-needed $27 million to the Massachusetts Legal Assistance Corporation (MLAC – line item 0321-1600), and start a dialogue that you can continue throughout the budget process — and into the future on issues of interest to you, such as the criminal justice reforms Senator Brownsberger and others are working on.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Repairing the World through Judicial Innovation and Evolution

On Tuesday, Chief Justice Ralph Gants gave his annual State of the Judiciary Address at the MBA’s Bench Bar Symposium in the Great Hall of the John Adams Courthouse.  Attendees such as Speaker of the House Robert DeLeo, Judiciary Committee Co-Chairs Representative John Fernandes and Senator William Brownsberger, Attorney General Maura Healey, Governor’s Chief Legal Counsel Lon Povich, and a host of SJC Justice and Chiefs of the Trial Court departments were there.

Chief Justice Gants began with high-minded principles.  He explained that he sees every court – not just specialty courts — as a problem solver, which he defines as meeting an obligation to repair the world, an obligation met by saving even one life.  No one, he noted, comes before our courts unless they have a problem that cannot otherwise be amicably resolved.  All courts seek to repair the world, one problem at a time – a task that can be accomplished only with the support and assistance of the two other branches of government.

Gants SotJ

The Chief went on discuss two main issues, civil case reforms and justice reinvestment.

Civil Case Reforms

The Courts are intent on changing civil cases, making them more affordable and cost efficient at all levels.  “Slow, expensive litigation,” he said, “is the way of the dinosaur.”  Three changes are coming this winter:

  • A menu of options in Superior Court – parties will soon be able to choose from a number of resolution options. The top option will be the “three course meal” of full discovery and a jury trial.  However, there will be a sliding scale of other options, available only upon the agreement of all parties, which will attempt to bring cases to resolution with greater speed and less expense.  We expect to have an opportunity to circulate these proposals for comment within the BBA before they take effect.
  • More efficient cases – judges will monitor cases more closely to assure that they stay on track. In addition, the SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure will be revising Rule 26 of the Rules of Civil Procedure.  Using the recently revised federal rule on discovery as a model, the Committee will tweak our state rule to encourage discovery proportional to case costs.  We look forward to being part of the review and comment process on Rule 26 as well.
  • Increased number of dedicated civil sessions – the District Court and Boston Municipal Court will, at least partly in response to our comments, introduce more sessions dedicated to civil cases, so that these will no longer be the third priority behind criminal and domestic abuse cases. They will also delay implementing the proposed increase in the procedural amount at these courts until these new sessions are running well and demonstrating that they can more efficiently handle civil cases.

Justice Reinvestment

The Chief Justice shared a number of ways the courts are working to improve criminal practice, with a focus on decreasing recidivism, helping individuals become productive members of society, and using the state’s criminal-justice budget more wisely to help achieve these twin goals.

  • Trial Court departments with criminal jurisdiction have been studying best practices in sentencing and hope to use this information to improve sentencing practices starting this winter. The BBA was represented by Thomas Peisch, Conn Kavanaugh, on the Superior Court Working Group; Daniel Dain, Dain, Torpy, Le Ray, Wiest & Garner PC and Michael Fee, Pierce & Mandell PC on the Land Court Working Group; and Thomas Beauvais and Nigel Long, Liberty Mutual on the BMC Working Group.
  • Chief Justice Gants is committed to following the findings and recommendations of the Council of State Governments, which he, along with the Governor, Speaker, and Senate President, invited to examine the Massachusetts criminal justice system. He cited a fact that the Council had already found – in 2012, 46% of those released from state prison in the Commonwealth went back to the street without either parole or probation supervision.  This is one of the highest unsupervised release rates in the country and may have the effect of increasing recidivism rates.
  • The Chief offered a number of ideas on justice reinvestment such as increasing the availability of good time credits, promoting step-down and re-entry programs, and removing mandatory minimum sentences, or at least their prohibition on the aforementioned programs. He also expressed the belief that the Commonwealth may benefit from decreasing sentence lengths and enhancing post-incarceration supervision.  Even though the Commonwealth’s incarceration rate is amongst the lowest in the country, it still does not compare favorably to history (the incarceration rate now is three times higher than it was in 1980 despite the fact that the rates of violent crime are now 22% lower and property crime are now 57% lower), or the world (if Massachusetts were a separate nation, it would have the eighth highest incarceration rate).
  • We need to reconsider all of the fees we are imposing on criminal defendants. We are charging them each hundreds, and sometimes thousands of dollars – fees that amount to more than $30 million per year, when many of these individuals have little or nothing to spare.  In addition, the task of collecting these fees has fallen to probation officers, which distracts them from their far more important function of helping probationers succeed in re-entering society.

Chief Justice Gants ended his speech with some notes on access to justice and jury voir dire.  On the former issue, he touted the recent opening of four Court Service Centers and the adoption and beginning implementation of a language access plan to help non-English speakers understand court processes, forms, and procedure.  The Courts are constantly exploring ways to assure that everyone can meaningfully access their services.

Finally, he talked about how the SJC responded to the bar with the adoption of attorney voir dire.  We were pleased to be involved in this process, as current BBA Vice-President Mark Smith, Laredo & Smith, LLP, served on the SJC Committee on this issue.  Over the past year, the Court issued a standing order governing lawyer participation in voir dire and designed a pilot project on panel voir dire, which is in use by 15 Superior Court judges.  They also recruited 30 Superior Court judges to study attorney-conducted voir dire.  The Courts have trained judges and gathered data on the impact of the new measures.  In all, the Courts continue to develop, grow, and adapt to this new aspect of practice.

As always, Chief Justice Gants clearly has his finger on the pulse of the judiciary.  We are excited to learn of the changes that are coming and to reflect on the strides the Courts have made in the last year.  We look forward to working with the judiciary to bring the Chief’s visions to reality, as the Courts innovate and thrive.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.

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The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.

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Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.

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We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”

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Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.

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The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

From Boston to the Vatican and Beyond: Haskell Cohn Honoree Chief Justice Rapoza

The BBA is proud to be honoring Appeals Court Chief Justice Phillip Rapoza with the 2015 Haskell Cohn Award for Distinguished Judicial Service on September 24 (click here for tickets and details).  The award was established by Mintz Levin for one of its founding members, Haskell Cohn, in 1975 in honor of the 50th anniversary of Cohn’s admission to the bar.  It is presented to a member of the Massachusetts judiciary, or a resident of Massachusetts who is a member of the Federal Judiciary, who has distinguished himself/herself in a manner that calls for special recognition.

A tax and estate planning expert, Haskell Cohn served as BBA President from 1969 to 1971.  He was known for espousing many of the tenets central to the BBA’s mission.  As BBA President, he helped spark a fundraising drive to raise money for law school scholarships for students of color.  He urged lawyers to go beyond the narrow confines of the profession and was a driving force behind a BBA effort to help expand affordable housing stock in Boston.  He also cared deeply about the quality of the judiciary and served as Chair of the Joint Bar Committee.

The 31st Haskell Cohn Award recipient, Justice Phillip Rapoza, served as Chief of the Appeals Court from October 17, 2006, to June 30, 2015, when he retired from the judiciary.  He had served on the Appeals Court since 1998, and prior to that was a District and Superior Court Judge since he was appointed to the bench in 1992.  As Chief Justice, he played an important role in setting many key precedents for Massachusetts.  He also served admirably as chief administrator, managing all of the other Appeals Court justices and staff.  Finally, he worked to modernize the appeals court as a strong proponent and early adopter of electronic filing technology.

Justice Rapoza’s influence extends far beyond Massachusetts.  He is the grandson of Portuguese immigrants and is a leader in the Portuguese-American community in Massachusetts.  He is the first Portuguese-American judge to serve at the appellate level in Massachusetts. He served on the US Council of Chief Judges of State Courts of Appeals, lead the Commission for Justice Across the Atlantic, a judicial exchange program between the US and Portugal, and is President of the International Penal and Penitentiary Foundation.  In his role with the IPPF, he was recently invited to address the pope.  He used this opportunity to speak on the rehabilitation and reintegration of criminals, an issue we have discussed here a number of times beforeIn his speech he described the negative impact of high incarceration rates globally and the lack of rehabilitative opportunities for inmates.  He encouraged justice reinvestment through the use of alternative sentences, intermediate sanctions, and diversionary programs that would benefit the individual, their family, and the community at large.  The BBA has long supported these sorts of measures to end mass incarceration and we are pleased to see Justice Rapoza addressing them on a world stage.

Justice Rapoza is also a leader in the field of international criminal justice, working to spread the rule of law in the developing world, including serving on UN-backed war crimes tribunals in East Timor and Cambodia.  From 2003 to 2005, he took an unpaid leave of absence from the Appeals Court to work for the United Nations, serving in East Timor as an international judge and coordinator of the Special Panels for Serious Crimes.  The Special Panels was a war crimes tribunal established by the UN to prosecute crimes against humanity and other serious offenses committed during the Indonesian occupation of East Timor.

Justice Rapoza has demonstrated his remarkable commitment to justice and the rule of law both at home and around the world.  His work illustrates how a state court judge can have an influence around the globe, and he stands as a reminder of the excellence of the Massachusetts judiciary.  We look forward to presenting him with our highest recognition for the judiciary, and we hope to see you there.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association