Posts Categorized: mass incarceration

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

Stepping Up: Bridgeman Argument and the BBA’s Mission

We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission.  This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all.  One place we see these tenets in action is in our amicus work.  From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.

In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157).  Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.  Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.

Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal.  Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.

Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem.  Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee.  We couldn’t agree more, and our brief makes that point as well.

The justices and attorneys also probed a number of other issues pertinent to our brief, mission, and Presidential letter:

  • At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually.  The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.

Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.

  • Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions.  The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so.  Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.

The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines.  They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  A global solution would, they argued, undermine this requirement.

  • What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants.  Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status.  Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.

The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally.  We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.

We are extremely proud of the work of our Amicus Committee on this case.  They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values.  As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.

– 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

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

BBA Advocacy in DC – ABA Day 2016

Last week, we made our annual trip to Washington, D.C., for the 20th ABA Day—the annual event that brings bar-association leaders to the capital for three days of meetings with members of Congress and their staffs, trainings and briefings, awards and speeches, and mingling with lawyers from across the nation.

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Mark Smith and Carol Starkey on the US Capitol Underground Tram 

This year, the BBA was represented by President-Elect Carol Starkey, of Conn Kavanaugh, and Vice-President Mark Smith, of Laredo & Smith.  They were joined in Washington by the MBA President Bob Harnais and Vice-President Jeff Catalano.  In one whirlwind 24-hour period (all right, make that 26 hours, to be precise), the group visited the offices of 10 out of our 11 Senators and Representatives, to advocate on issues of great importance to both the ABA and the Massachusetts bar.

One constant theme of ABA Day, year after year, is the importance of federal funding for the Legal Services Corporation (LSC), which in turn doles out support to legal-aid organizations at the state level.  In the current FY16 budget, the ABA was able to secure a $10 million increase in LSC’s appropriation—no easy lift at a time of fiscal restraint and polarization in Congress.  For FY17, with current funding still 15.7% lower than it was in 2010 (inflation adjusted), we argued for a substantial increase, from $385 million to $475 million.

In making this case to our delegation, we were helped once again by the October 2014 report of the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, which found that—in addition to being the right thing to do, to offer legal assistance to low-income residents in need and to reduce delays in our courts—increased funding for legal aid produces a return on investment, by saving the government on “back-end” costs such as health care for domestic-violence victims, emergency shelter after evictions or foreclosures, and foster care for children.  (We continue to use this report as the basis of our campaign for state funding for the Massachusetts Legal Assistance Corporation.  Stay tuned until next week for an update on this and all our other budget priorities.)

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Left to Right: Rep. Joe Kennedy, Bob Harnais, Mark Smith, and Carol Starkey

One of the leaders on this subject in Congress is our own Rep. Joseph P. Kennedy III (Brookline), who co-founded the bipartisan Access to Civil Legal Services Caucus this past fall, alongside a GOP colleague from Indiana, Rep. Susan Brooks.  At one of the ABA Day breakfasts, we heard Rep. Kennedy give an impassioned speech about the critical importance of legal aid.  Later that day, he ducked out of a committee mark-up session to meet with us.

The second issue we discussed with our elected officials was criminal-justice reform.  The ABA has endorsed legislation pending in Congress to address sentencing of both adults and juveniles.  This is an area that has seen tremendous movement in recent years, with dozens of states taking action to restructure their criminal-justice systems so as to relieve over-incarceration, reduce expenditures, and promote successful re-entry—all while protecting public safety.  (Here in Massachusetts, a similar effort is underway, with leadership from all three branches of government working with the Council of State Governments on a year-long comprehensive review that is expected to lead to legislation early next year.)

We were told by a number of legislators that there is a growing bipartisan consensus in support of such bills, with the main lingering questions being how to address the fine print, and whether enactment might happen in the near-term, during a Presidential campaign, or will have to wait until a lame-duck session after the election.

The last item on our agenda, in meetings with our delegation, is mandatory accrual accounting for law firms and other types of personal service businesses, which would have a deleterious effect, especially on smaller firms, by requiring them to book revenue, and pay taxes on it, even before it has actually been received.  This was proposed a few years ago, but thanks to a concerted campaign by the ABA—in which the BBA took part—it was shot down.  However, no idea is ever truly dead in Congress, and we must remain vigilant in case such language re-emerges.  For that reason, it’s important to convey to our representatives that the issue is still on our radar screens.

Fortunately, all Massachusetts Senators and Representatives who were in office during the last session signed onto a letter opposing mandatory accrual accounting, so we know we have their support on this should we need it.

In fact, we enjoy support virtually across-the-board from our delegation on all these priorities.  So for the BBA and the MBA, unlike representatives from many other states, these visits are not about changing minds but rather about conveying our appreciation for their positions.  We have it relatively easy compared to, say, ABA President-Elect Linda Klein, who spoke at one event about the challenge of trying to persuade some members of Congress from her home state of Georgia.

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Left to Right: Lee Constantine, Jeff Catalano, Carol Starkey, Mark Smith, Sen. Markey, Bob Harnais, Mike Avitzur

Regardless of the circumstances, it is always a pleasure to have a chance to sit down with national leaders like Sen. Edward Markey, who spoke about two legal internships he held while at Boston College Law School.  Those experiences demonstrated to him first-hand the importance of providing legal representation to low-income residents, and they undergird his long-standing support for legal-aid funding.  He also expressed dismay that the crushing burden of law-school debt is driving too many new attorneys away from public service—the path he chose—after graduation.

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Left to Right: Bob Harnais, Jeff Catalano, Sen. Warren, Carol Starkey, Mark Smith

As an expert in bankruptcy, Sen. Elizabeth Warren understands how legal-services attorneys created the common law around the then-new bankruptcy law 25 years ago, back when there was much more funding; now, the federal government doesn’t provide money for legal services to take on bankruptcy cases.  Sen. Warren called the LSC appropriation “crumbs” in the context of the federal budget, and assured us that she’ll continue to fight for a justice system that “feels fair”—not one that works only for the wealthy.  Her commitment to legal services is demonstrated by her recent hiring of Stephanie Akpa as Counsel.  Stephanie previously worked for the Legal Aid Society of the District of Columbia and is advising the Senator on Judiciary Committee matters, such as the sentencing reform we had come to advocate for.  Sen. Warren noted that while most Senators use their limited office payroll for staffers to the committees on which they sit, she chose instead to assign Judiciary to Stephanie because of the priority the Senator places on those issues, even though she is not a member of that committee.

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Left to Right: Jeff Catalano, Carol Starkey, Bob Harnais, Rep. McGovern, Mark Smith

From Rep. James McGovern (Worcester), we heard stories from the night he recently spent in a homeless shelter in his district.  This issue is personal for him—he held a hearing on poverty earlier this month as well—so he understands the importance of lawyers in helping to keep people in their homes.  He also applauded our efforts on criminal justice, noting the need to focus on early intervention to help juvenile offenders turn their lives around, and re-entry efforts to give ex-offenders a real chance to “have a life.”

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Left to Right: Jeff Catalano, Carol Starkey, Rep. Capuano, Bob Harnais, Mark Smith

Rep. Michael Capuano (Somerville) called sentencing reform “the most hopeful thing we might work on this year,” saying this is the first time in his life that the potential exists for positive action.  He told us he’s always opposed mandatory minimums (as does the BBA): “I know the difference between a criminal and someone who made a mistake,” he said, but mandatory sentences ignore that distinction.  They also lead in some cases to criminalization of a health problem; the Congressman doesn’t want anyone to have to rob his mother’s house in order to feed their addiction.

During the foreclosure crisis, Rep. Katherine Clark (Melrose) saw how difficult it was for her constituents to get access to legal assistance, and how this led to many of them losing their homes.  So she knows all about the justice gap from her service in both the House and Senate in Massachusetts, where she worked tirelessly to try to close it.  Now, she’s brought that commitment with her to D.C.  Indeed, she won the Equal Justice Coalition’s Champion of Justice award in 2014 for her work on behalf of legal-aid funding at both the state and the federal level.  We have her support on this, as well as on sentencing reform.

As the 114th Congress continues its work, we’ll keep an eye on all these issues, and we’ll be back in D.C. again in 2017 for the 21st annual ABA Day.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Focused on the Budget – BBA Update

In addition to yesterday’s budget member alert, we have been busy with advocacy of our own.  At the same time we asked you to contact your Representatives, we sent a letter to Speaker of the House Robert DeLeo, explaining the need for adequate funding for the three issues described above.  We have also been meeting with state and national leaders to discuss our budget priorities.

State Representative Meetings

Earlier this week, former BBA President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, met with Speaker Pro Tempore Patricia Haddad’s office and Assistant Majority Leader Byron Rushing.  More meetings are scheduled in the coming weeks.  Smeallie has spent the last 18 months educating legislators on the findings of the Task Force’s Investing in Justice Report and is devoted to raising awareness of the need for increased legal aid funding.  Through surveys of civil legal aid agencies, the Task Force found that 64% of those eligible for legal aid, at 125% of the federal poverty level, are turned away annually due to lack of resources.  This lack of resources is due in-part to the nearly $30 million decrease in IOLTA funding over the last decade due to fewer deals and plummeting interest rates (more on this below).

This drop in funding caused legal aid organizations to lay-off attorneys and support staff, resulting in an increased number of pro se litigants navigating the courts.  Unrepresented litigants cause delays, take up the time and efforts of judges and court staff, and often struggle to access justice, as demonstrated in a survey of judges conducted by the Task Force.  Finally, the Report demonstrates that investment in civil legal aid yields positive returns, helping the state to save on back end costs such as shelter, police, and medical expenses, as well as bring money into the state through federal benefits.  The Report demonstrate that every $1 invested in civil legal aid serving evictions, domestic violence, and federal benefits, yields $2-$5 dollars in returns to the state.

Congressional Delegation Meetings

At the same time, BBA President-Elect Carol Starkey, Vice President Mark Smith, and Director of Government Relations and Public Affairs, Mike Avitzur, have spent the last two days in Washington, DC, at ABA Day with their counterparts from the MBA.

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From Left to Right: MBA President Bob Harnais, MBA President-Elect Jeffrey Catalano, Senator Elizabeth Warren, BBA President-Elect Carol Starkey, BBA Vice President Mark Smith

In addition to discussing mass incarceration issues and opposition to accrual accounting for law firms, our delegation is advocating for increased funding for the Legal Services Corporation (LSC), the federally funded non-profit corporation the promotes equal access to justice and provide grants for high-quality civil legal assistance for low-income Americans.  LSC provided four legal aid programs in Massachusetts with just over $5 million in FY2016.  In recent years, similar funding has yielded roughly 11,000 to 13,000 cases closed annually.  Stay tuned for a longer write-up on our ABA Day meetings on this blog next week.

Council Meeting

On Tuesday, we heard from MAIOLTA Director Jayne Tyrrell who spoke to the BBA Council about ways lawyers and law firms can maximize their IOLTA contributions, which in turn benefit civil legal aid organizations.  As noted above, IOLTA is one of the largest funders of civil legal aid, but due to historically low interest rates, its funding amounts have decreased dramatically.  While federal interest rates remain low, banks vary in their individual offerings, thus it matters where lawyers and law firms do their banking.  In Massachusetts, more than 40 banks have signed-on as Leadership Banks, agreeing to pay a minimum of 1% interest on IOLTA accounts.  Here is the full list.  Tyrrell encouraged all lawyers and law firms to consider banking with one of the listed banks for the benefits their interest rates will provide for civil legal aid.

At the same meeting, we heard from Governor’s Chief Legal Counsel, Lon Povich.  He spoke on the budget as well, noting that both the Governor’s proposed budget and the budget issued by the House Ways & Means Committee contain no new taxes or fees.  The Governor’s FY17 budget proposal contained a 1% increase for civil legal aid and the courts, in addition to $1 million and enacting language for statewide expansion of the Housing Court.  While the House Ways & Means budget proposal included slightly larger increases for the Trial Court and MLAC, it did not include language or funding for Housing Court expansion.

Povich also discussed the work of the Massachusetts Criminal Justice Review undertaken by the Council of State Governments, and under the sponsorship of the Governor, Chief Justice of the SJC, Senate President and Speaker of the House, as well as the process  to fill vacancies on the SJC and other courts.  Both are still ongoing and we look forward to their forthcoming results.

The budget process continues through June, and we will continue to advocate for adequate funding for our priority issues and hope that you will as well – starting with contacting your Representative as explained above.  We will keep you updated on how the budget progresses and will likely be reaching out at other key points to request your help again.  Thank you in advance!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Focus on Reducing Recidivism

We’ve spoken at length in this space about the BBA’s opposition to mandatory-minimum sentencing, which limits judicial discretion, applies one-size-fits-all solutions regardless of the facts and circumstances of each case, and contributed heavily to the explosive growth in prison and jail populations across the nation (with Massachusetts no exception) in the last decades of the 20th century.

Support has grown for reform of mandatory sentencing practices as the toll they have taken on individuals and their families, and the costs they impose on state budgets, have become clearer.  But the public debate on criminal-justice policies has broadened, to include a variety of other issues, such as: reform of the bail process, to make it more reflective of the true risk posed by a defendant and less disproportionately punitive toward the poor; use of evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; and ways to reduce recidivism and promote successful re-entry of the 90-plus% of those currently incarcerated who will ultimately return to society after incarceration.

There has been much movement in recent weeks on this last point.  In January, two different groups dedicated to in-depth analysis of criminal-justice data in Massachusetts publicly presented their findings.  And this past Saturday, at our annual John and Abigail Adams Benefit, the Boston Bar Foundation bestowed its 2016 Public Service Award upon Roca, a community-based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society.  Read more about Roca here.

Founded in 1988 by CEO Molly Baldwin, who accepted the award for Roca during the event at the Museum of Fine Arts, Roca focuses on those youths, overwhelmingly men, who are at greatest risk of recidivism – gang members, school drop-outs, young parents.  Their outcomes-driven approach combines relentless outreach with data-driven evaluation, starting with the question, “Are we helping young people change behaviors to improve their lives — and how do we know?”  Roca recognizes that criminal involvement and poverty are intertwined, and they seek to disrupt that cycle, with the motto, “Less jail, more future.”

In 2014, Roca partnered with the state and outside investors to undertake the Massachusetts Juvenile Justice Pay for Success Project, one of the nation’s first projects involving “social impact bonds,” which deliver private funds to non-governmental organizations on the promise that their work, and their expertise, can help save money in the end.  Essentially, if Roca is able to reduce recidivism and improve job skills for its target group of ex-offenders, the state will reward investors out of its criminal-justice savings.  If they are unable to do so, the investors will take the loss.  The project is set to run through 2020, but either way, Roca and the state government will gain valuable data on what works and what doesn’t, and Roca is using the funds to help grow its operation, which began in Chelsea, but has since expanded to other communities within Greater Boston, and to Springfield.

While Roca has been working with young people at the ground level, researchers at the public-policy think tank MassInc have been studying what the statewide data show about our re-entry practices in Massachusetts, with an eye toward how a better strategy can improve outcomes.  Last week, they held an event to announce the release of their latest report on criminal justice, Reducing Recidivism in Massachusetts with a Comprehensive Reentry Strategy, and to discuss its findings.

One of the report’s key takeaways is that our re-entry supervision resources are being distributed inefficiently: For example, ten percent of inmates are released to “dual supervision,” meaning they are redundantly required to report to both the Department of Probation (based on a sentence that included probation time after incarceration) and the Parole Board (for those who were released under their auspices).  These agencies operate independently, within two different branches of government (Parole under the executive and Probation under the judiciary).

Furthermore, the MassInc researchers classified released individuals by their assessed risk – low, medium, and high – and found, perversely, that the high-risk inmates were actually the most likely to be returned to the street with no supervision at all.  One factor is that in about half of the instances where a mandatory minimum applies, the judge imposes an “and a day” sentence, in which the maximum sentence is one day longer than the minimum.  As a result, the defendant effectively has no option of parole.

Bruce Western, Professor of Sociology at the Kennedy School of Government, then offered findings from his own research on the critical factors that deter recidivism.  Prof. Western categorizes them by age upon release, and looks at whether ex-offenders have mental-health or substance-abuse problems, whether they have employment, stable housing, or family support, and whether they participate in social programs.  One of his main conclusions is that families – and, in particular, older female relatives – should be supported as part of a typical re-entry plan, because they can have a very positive effect on outcomes.  Another focus should be older men – who are less likely to have such relatives in their lives and thus more likely to be socially isolated – especially those experiencing poverty, mental illness, or addiction.

The forum ended with a panel discussion that included Berkshire County DA David Cape less, MassINC Research Director Ben Forman, the BBA’s Civil Rights & Civil Liberties co-chair Rahsaan Hall of the ACLU of Massachusetts, representatives from Connecticut and Texas – two states that have recently reformed their criminal-justice policies – and Conan Harris, the Deputy Director of the Mayor’s Office of Public Safety Initiatives for the City of Boston, and himself an ex-offender.

While there appears to be growing momentum toward an overall re-evaluation of our own policies in Massachusetts, any major reform is likely to have to wait until 2017.  That’s because the Justice Center of the Council of State Governments plans to spend this year collecting and analyzing data and developing policy options, at the joint request of Governor Charlie Baker, Senate President Stanley Rosenberg, House Speaker Robert DeLeo, and SJC Chief Justice Ralph Gants.

Last month, their Massachusetts team gave dual presentations on their initial findings, to the full working group tasked with guiding their effort, and to the state’s standing commission on criminal justice, which includes Marty Murphy of Foley Hoag as the BBA’s representative.

Thus far, 23 other states have benefited from the Justice Center’s data-driven review process.  But each state presents a different picture, and the Center is careful to tailor their proposed recommendations to each state’s data and practices.   Their justice-reinvestment process seeks to identify areas where evidence-based solutions can yield cost savings, which can then be shifted toward programs that have proven their effectiveness at reducing recidivism while protecting public safety.

Though the Center’s Massachusetts work is still in its early work, their analysis has already produced some interesting findings.  For example, while the total incarcerated population is down 12% since 2006, all of that decrease has come from county houses of correction and jails; the number of sentenced inmates in state prisons has actually grown by 3% over that time.  And even at the county level, there is wide variation in population changes.  Meanwhile, they did detect a decrease at the state level over the past three years, but it’s too soon to tell whether this represents a true downward trend.

When the Center looked into recidivism, they noted that data are held by a great number of different agencies, and that, for the most part, those data are not made public.  The long-term trend shows recidivism rates holding steady, at about 40%, but the numbers from the past two years are lower; again, they could not say with any confidence that this will continue.

When it comes to supervision, the third area they’re looking at, the numbers show that while the number of parolees is down sharply in recent years, the population under probation supervision is on the rise.

The Center plans to continue its work on these and other findings and will report back to the working group throughout the year, with the goal of producing legislation that can be filed by the beginning of the 2017-18 legislative session.  We will, of course, continue to monitor all developments in this area, and report back to you here.

— Michael Avitzur
Government Relations Director
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.

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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

Massachusetts leads, SCOTUS follows? Retroactivity in Juvenile Life Sentencing

Earlier this week, the US Supreme Court heard oral argument in the case of Montgomery v. Louisiana.  The transcript is available here.  The case addresses, along with jurisdictional concerns, whether the Supreme Court’s 2012 ruling in Miller v. Alabama has retroactive effect.  In criminal cases, the Supreme Court’s rulings generally do not have retroactive effect unless the new rule is considered “substantive.”  Miller declared mandatory life sentences without the possibility of parole for homicides committed by minors to be in violation of the 8th Amendment prohibition on cruel and unusual punishment, and required judges in such cases to consider the defendant’s youth, background, and capacity for rehabilitation, as well as the nature of the crime, before handing down a sentence without parole.  Miller followed Graham v. Florida (2010) which prohibited life sentences without the possibility of parole for non-homicide offenses.

Montgomery brings to SCOTUS the case of Henry Montgomery, a 69 year old who has been in prison since he was 17 years old for murdering a sheriff’s deputy in Baton Rouge.  He argued in state court that the Miller holding must be applied retroactively, thereby making him eligible for parole.  The case rose to the Louisiana Supreme Court, which held against Montgomery.  The US Supreme Court granted certiorari in late March of this year.  Louisiana argued in part that the Miller holding was not substantive enough to have retroactive effect, because life without parole sentences are still available for juveniles in homicide cases as long as they are not mandatory.

Should the Court find for Montgomery, about 1,500 prisoners convicted of homicide as juveniles and given mandatory life sentences without the possibility of parole would suddenly gain parole eligibility.  While the Supreme Court is considering the case, analysts suggest that they may still skirt the question of Miller’s retroactive effect, waiting until a prisoner files suit under a federal habeas corpus statute rather than in state court.

Massachusetts dealt with this issue over the last couple of years.  In response to Miller, the SJC held in late December 2014 in Diatchenko v. District Attorney that all life without parole sentences for juveniles were unconstitutional in Massachusetts, even if imposed by a judge at her discretion. This decision came only weeks after the BBA approved principles opposing these sentences.  In Diatchenko, the justices considered – as had the Miller court — current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  But they reasoned that the proper conclusion is that a judge cannot possibly ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment.

The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, became immediately eligible for parole.  In addition, the Diatchenko holding also applied retroactively to other juvenile life without parole convicts who had served at least 15 years, making roughly 65 inmates suddenly parole eligible for the first time.  “Eligibility for parole” merely entitles an inmate to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed, has taken full responsibility for his or her actions, and poses no threat to public safety.  However, the ruling did eventually result in the release of at least a few individuals in Massachusetts who had been serving these sentences.

Diatchenko also invited the Legislature to revise its juvenile-murder sentencing scheme to come into line with the ruling which stated that juvenile offenders must receive a “meaningful opportunity” for parole, without defining the appropriate length of the mandatory portion of a sentence before eligibility.  As we described, after a contentious hearing in May 2014, lawmakers agreed on a compromise bill, H4307, that would permit parole eligibility after 25-30 years for juveniles convicted of premeditated murder and after 30 years for juveniles found guilty of murder with extreme atrocity or cruelty.  Juveniles convicted of felony murder would be parole eligible after 20 to 30 years.  The bill was enacted in July 2014.

We are proud that the Massachusetts Judiciary and Legislature successfully addressed the retroactivity issue in the wake of Miller, and we hope that the U.S. Supreme Court will use Montgomery as an opportunity to set the record straight for the individuals in other states who are serving sentences under a sentencing scheme now recognized as unconstitutionally cruel and unusual punishment.  A decision is expected by late spring, and we will keep you posted on the latest developments with this case.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association