Posts Categorized: opioid

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

Recovery with Justice: BBA President Visits Mental Health Court

BBA President Lisa Arrowood recently completed her tour of the state’s Specialty Courts with a visit to Mental Health Court.  Since the start of the new year, President Arrowood visited sessions of the Drug Court and Veterans’ Treatment Court , and more recently Homeless Court.  It was nice to see a familiar face, Judge Kathleen Coffey, who runs both the Homeless Court at Pine Street Inn and the Mental Health Court Session at the West Roxbury division of the Boston Municipal Court (BMC).

Mental Health Court began in Massachusetts nearly a decade ago – 2007 in the BMC and 2009 in District Court.  They represent a handful of the 250-or-so mental health courts nationally, which arose out of a recognition that an estimated 70 percent of men and women in the criminal justice system suffer from mental illness.

The Court is designed for individuals who are competent to stand trial, have disposed of their criminal cases by admission to sufficient facts or a guilty plea, and have been placed on pre-trial or post-disposition probation.  The sessions include a court-imposed condition of probation for defendants who have serious mental illness or co-occurring mental health and alcohol or substance abuse issues.  Working with a mental health clinician from the Boston Medical Center, the probation officer assigned to the Mental Health session identifies the particular mental health and social needs of each participant, and creates a service plan which includes referrals to mental health treatment, substance abuse treatment when appropriate, as well as housing, educational and employment opportunities.


Mental Health Court participants are usually involved with the program from somewhere between three months and one year.  During that time, the Court monitors progress and compliance with the service plan through regular in-court reviews with the judge, mental health clinician, and probation officer.  In the last nine years, almost 70 people have graduated from these programs, and an additional 32 participants are currently being served.  National studies place recidivism rates for mental health courts in the high teens (17-20%), less than half of the rate for traditional courts.

These are the facts.  In reality, however, the program is far more than the description above.  First of all, Mental Health Court is a misnomer.  It is instead referred to in the courthouse and by all involved staff as the Recovery with Justice (RwJ) Program so as to avoid the negative stigmas that are still sometimes associated with mental health issues.  As Judge Coffey noted to President Arrowood, even drug addiction is less stigmatized than mental illness.  By calling the program RwJ, she hopes to encourage more individuals to participate and stick with the program.  The name is undeniably important: Consider the difference between telling an employer that you need to be late to work for your Recovery with Justice program session rather than Mental Health Court.

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Second, the session is largely focused on support and guidance.  Judge Kathleen Coffey takes the lead, and all the individuals involved have embraced their roles to find ways to solve problems for the people in the program.  Judge Coffey and clinicians follow-up on everything from counseling and drug treatment sessions to job training and sober programs.  When one RwJ participant told of a recent relapse, Judge Coffey recognized the slip-up but told the individual she was proud of the progress made since then, explaining that the Court was interested in providing options for success without overburdening the participants.  The words hit home, as the individual turned back after his time with the judge and explained to the courtroom, “See all the people who care about me?  It’s great.”
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As Judge Coffey explains, the key is PACE, and no, she doesn’t mean the speed of court proceedings.  In fact, speed is definitely not at issue as the judge and court personnel made sure to spend as much time as needed with every RwJ participant and explained each step they were taking along the way.  PACE stands for “Positive Attitude Changes Everything,” and is a mantra Judge Coffey has adopted for the RwJ  program.  While RwJ provides resources, it still requires the participants to put forth the effort, desire, and work towards the goals they want to achieve.  That all starts with attitude.

For example, one participant who was nearly finished with the program spoke to the judge about how he was now willing to take his medication because he recognized its benefits, wanted to grow-up and improve his life, and the court and clinicians worked with him to shift his dosage amount and schedule to help him avoid the sluggishness side effects during the day.  His reluctance and doubts were replaced with a willingness to try the clinicians’ recommendations and a drive to succeed at least in part because his concerns about the negative medication side effects were heard and addressed.

We are pleased to see that specialty courts are accessible nearly statewide, and that the Trial Court is committed to their expansion and continued improvement.  To help make that a reality, we are advocating in the legislature for more funding for the Trial Court.  The Trial Court requested a maintenance budget (representing what it would cost to merely continue the same level of services from last year) of $654 million.  The Governor’s budget allocated $637 million, which would result in the layoffs of roughly 300 Trial Court employees and have a major negative impact on its ability to deliver justice and ensure the safety of those in court.  Despite being the third co-equal branch of government, funding for the Trial Court has grown only 7.9% from FY08 to FY16, while the overall state budget has increased 43.3% in that same time period.  We urge lawmakers to decrease this gap.

The Court is also highlighting three budget “modules” that the Legislature could opt to fund, including $2.8 million for specialty courts, $4 million for security systems enhancements, and $1.2 million for statewide expansion of the Housing Court.  The specialty court module would fund seven additional court sessions including Court Clinicians from the Department of Mental Health, residential treatment from the Department of Public Health, Probation Officers, and certification and training for all involved.  The state stands to gain so much by investing such a small sum.

We look forward to keeping you updated on the budget process and funding for the judiciary.  We hope that you will get involved and keep an eye out for our legislative alerts in case we need you to raise your voices in support of this cause.  Unlike other causes, the trial court does not have natural advocates, so it is up to lawyers to raise awareness of the need to adequately fund this branch of government.

– 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