BBA Submits Letter in Support of Full Bench Review of Petition Seeking Writ of Protection Against Courthouse Immigration Arrests

Today, the BBA submitted a letter to Justice Elspeth B. Cypher of the Supreme Judicial Court (SJC), requesting a full-bench review of a recently-filed petition that asks the Court to ban U.S. Immigration and Customs Enforcement (ICE) agents from making civil arrests in and around courthouses.

Background

Over a year ago, the issue of ICE targeting immigrants for arrest in and around courthouses came to national attention when ICE agents appeared at a courthouse to detain an undocumented woman who was seeking a protective order against her allegedly abusive boyfriend. The rise in accounts of these actions began following the release of new executive orders and instructions on immigration enforcement, which called for an increase in interior enforcement and the expansion of enforcement priorities to cover essentially all immigrants in the country without legal status.

A recent report from the Northeastern University School of Law Immigrant Justice Clinic highlights these increasing accounts, and harmful effects, of arrests of immigrants by ICE officials in and around Massachusetts courthouses. The report showed that ICE is indeed conducting arrests at numerous courthouses in the Commonwealth, and the data compiled in the report relates to ICE activity at twelve different courts. The report further concluded that “ICE is targeting both documented and undocumented immigrants, with no apparent regard for the seriousness of the pending charge. Many of those who have been arrested are longtime residents with U.S. citizen family members.”

It does not appear that immigration enforcement activities, including those in and around courthouses, are set to slow down in the near future. In fact, those jurisdictions that have previously extended protections to immigrants could very well see even more aggressive enforcement. In late September 2017, the Trump Administration announced and carried out enforcement activities specifically targeting regions where deportation officers were denied access to jails and prisons or where ICE detainers were not honored. In their statement on the raids, ICE officials specifically mentioned Massachusetts, in light of the SJC’s decision in Lunn v. Commonwealth, which held that honoring an ICE detainer would be tantamount to an arrest, and that no law in Massachusetts allows a law enforcement official to arrest someone without a warrant for an immigration violation, a civil offense. And in January of this year, ICE issued a directive that revealed its intent to continue these arrests, outlining a specific policy for actions in and around courthouses.

The Petition

On March 15, Greater Boston Legal Services (GBLS), the Committee for Public Counsel Services (CPCS), and the Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) filed a petition In the Matter of c. Doe & Others (SJ-2018-0119). The Petition asks that the Single Justice in the case, Justice Cypher, reserve and report the entire matter for full bench review, so that the SJC may grant a writ of protection that would ban civil arrests, including those civil immigration arrests conducted by ICE officials, for individuals in state courthouses or traveling to and from official matters with the courts.

Petitioners in the case include a juvenile defendant with a crucial noncitizen witness too fearful to appear in court, and seven noncitizen petitioners who are afraid to appear, including: 1) a mother seeking guardianship of her disabled daughter, 2) a tenant claiming to have been illegally evicted from her home, 3) a victim of an assault, 4) a mother entitled to unpaid child support, 5) a victim of domestic violence seeking a restraining order, 6) a long-time lawful permanent resident facing a criminal charge, and 7) a woman pursuing a claim of wrongful dismissal from her job.

The Petitioners “respectfully request that [the] court report the matter to the full bench, so the Court can rule on this matter of vital importance and grant a writ of protection from civil arrest.” Towards this end, the petitioners make four arguments:

  1. Under common law, all those present within the Massachusetts Trial Courts and their environs, and those having business before the courts who are coming to, attending, and returning from those courts, including petitioners, are privileged from civil arrest – including civil immigration arrest.
  2. The common law privilege against civil arrest in and around state courthouses falls squarely within the powers reserved to the states under the tenth amendment.
  3. Application of the common law privilege to civil immigration arrests is essential for noncitizens to exercise constitutional rights that can only be asserted by physical appearance in court.
  4. The Court should issue the writ of protection confirming that the Massachusetts common law privilege against arrest applies to civil immigration arrests as part of its broad, superintendence powers under G.L. C. 211, Section 3.

The BBA Letter

The BBA has been following the issue of ICE in courthouses since the reports first began over a year ago. Last April, at ABA Day in Washington, we had the chance to discuss our concerns with the Massachusetts Congressional Delegation, and we reported on passage of Resolution 10C, which called on Congress to codify courthouses as a “sensitive location” for immigration enforcement purposes, by the ABA House of Delegates at their Annual Meeting in August. We’ve been keeping such a close eye on this matter because of its connection to issues of access to justice and the administration of justice.

Our letter, which does not weigh in on the specific arguments in the petition, but urges for review by the full bench, points to this interest:

For decades the BBA has advocated fiercely for [access to justice and the fair administration of justice] by, among other things, producing reports that make the case for expanding access to attorneys to those who cannot afford it, and by calling for an adequately funded judiciary in the state budget—all because we recognize that fair and equal access to the courts is a core requirement of a well-functioning democracy.

Over the past year, many in the legal community, including bar associations, judges, prosecutors and defense attorneys, and advocacy organizations and elected officials have expressed grave concerns about what ICE enforcement will mean for justice systems throughout the U.S.

For example, Washington Chief Justice Mary Fairhurst wrote in a letter to DHS that “when people are afraid to appear for court hearings, out of fear of apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner, who wrote to then-Secretary of Homeland Security John Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey also expressed the potential adverse consequences of courthouse arrests by ICE, writing in a letter to an ICE Special Agent last February that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action.  If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity.  Further, individuals who currently come to our Courts to help themselves or a loved one in obtaining a civil commitment for detox or treatment will be reluctant to come forward if they fear immigration consequences. Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety.  In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

Our letter highlights these concerns, shared by so many across the country, and in a statement on the letter, BBA President Mark Smith stated:

Given the BBA’s long tradition of working to expand and protect access to justice and the fair administration of justice, and the gravity of the issues at hand here, we believe it is important for this petition be reserved and reported to the full SJC bench.

We are grateful to have had the opportunity to weigh in on this important matter and will be following the development of the petition closely. Continue to watch this space for more updates!

 —Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Chief Justice Ralph Gants Makes His Annual Appearance at the BBA Council

Last week, the BBA Council was honored with the presence, at their monthly meeting, of Chief Justice Ralph D. Gants of the Supreme Judicial Court (SJC), who spoke on matters of importance facing the state courts.  As a matter of practical concern, the judiciary budget is always on Chief Gants’s mind, and that was certainly the case at this presentation.

The debate on the Fiscal Year 2019 (FY19) budget formally began last month with the filing of Governor Charlie Baker’s proposal, known as House Bill 2 (or H. 2).  The court system had requested a 2.2% increase this year for maintenance-level funding, which does not include the cost-of-living increase demanded by the unions with which the courts are currently bargaining.  What the Governor has suggested amounts to a 1.8% increase—$3.4 million short of their goal, but still the best starting point that the Chief Justice says has seen in his three-and-a-half years in that position.

However, he noted that the court system is still seriously short-staffed, particularly with regards to probation and courthouse security.  He said his highest priority is hiring more probation officers, especially as the courts are now asking them to be more involved in helping judges craft sentences, providing resources on diversion programs and pre-trial release, and spending more time with individuals suffering from mental-health and substance-use problems.

He said that apart from the maintenance budget, the courts were seeking funding for several modules, including for the specialty courts; for a program to address racial bias in the court system; and for an effort to create a triage program in the Family Court, which would provide initial case management in order to seek alternative resolutions that don’t involve litigation.  Chief Justice Gants noted that the Governor’s proposed budget would fund the Housing Court module, but would do so by taking it out of the rest of the Court’s budget.

On criminal-justice reform—another priority of both the Chief Justice and the BBA—he said that, with the omnibus legislation pending in the State House now in a conference committee, where discussions are being kept confidential, he remains a spectator like almost everyone else.

Chief Justice Gants said that a key area in which the BBA could offer assistance is in advocating for reform to mandatory minimum sentences, to which some of the Commonwealth’s District Attorneys object.  Chief Justice Gants noted that both proposed bills before the conference committee offer some reform in this area, with the Senate’s bill going further than the House’s.  For example, the two bills differ with respect to whether or not separate mandatory minimums for dealing drugs in school zones should be maintained.  Chief Justice Gants noted that there is another stand-alone crime for selling drugs to minors, and that he believes the mandatory minimum sentence should be removed, telling the Council he’s never seen an appropriate case for a separate school-zone charge—one which is used only as leverage in plea negotiations.

He expressed his concern about racial disparities in sentencing, particularly for drug crimes with mandatory minimums.  As he reminded the Council, each department of the Trial Court with criminal jurisdiction has recently developed best practices for sentencing, which the Court is now training judges and probation officers on.

Ralph Gants, Chief Justice of the Supreme Judicial Court, speaking to the BBA Council last week

Another area where Chief Justice Gants and the BBA both lobbied the Legislature is the statewide expansion of the Housing Court.  That effort produced results last year, effective July 1, 2017, and the build-out is well underway.  He said that the Court is in the process of staffing the expansion, and that there would be a new Metro-South division, to be based in Brockton (with discussion ongoing in the hope of opening a housing session in Framingham), while Cape Cod and the Islands would be incorporated into the Southeast Housing Court.

Returning to an issue that has been much in his thoughts of late, Chief Justice Gants said that of the seven Trial Court departments, the Family Court is currently under the most stress.  He noted that this was the department with the second highest percentage of pro se litigants (after the Housing Court), and that the matters litigated in this court are often complex and emotionally taxing.  Furthermore, unlike in other courts, “it’s always Groundhog Day”: Even after a case is closed, the parties often return to court seeking modifications in their situation.  Finally, written decisions in this court are required by law, meaning that judges in the Family Court have a heavy load of writing.  He said that he had asked retired SJC Justice Margot Botsford to study problems in the Family Court and consider what could be done to address them.

Another issue making the Chief Justice uneasy at the moment is the dearth of lawyers to take on care-and-protection cases in the Juvenile Court, particularly in Western Massachusetts.  He said that in cases where the Department of Children & Families seeks to remove a child from the parents’ custody, they have the right to a hearing within 72 hours.  If the parties are indigent, both parents and the child have the right to state-appointed counsel.  However, Chief Justice Gants said that as of October, approximately half of the mandatory hearings in the western part of the state were being postponed, often for one to two months, due to lack of counsel.

Chief Justice Gants expressed his deep concern about this problem, saying that it is unacceptable that people’s rights are not being met due to lack of access to counsel.  He noted that some attempts had been made to address the problem; the Legislature temporarily increased the hourly rate for attorneys in these cases to $75 per hour once 350 hours of casework have been completed, and judges now mention the importance of doing this type of work at all new-lawyer swearing-in ceremonies.  However, it is sometimes difficult to interest attorneys in taking on these cases, as they take place in a closed courtroom, without the opportunity for professional publicity, and can be emotionally draining.  Chief Justice Gants expressed his commitment to solving the problem, saying that the state should not set a precedent of allowing people’s rights to be violated due to lack of counsel.

Chief Justice Gants also said that each court with civil jurisdiction had created a menu of options for alternative dispute resolution—an undertaking he spearheaded, and to which the BBA contributed.  He encouraged Council members to spread the word to colleagues and clients that these options are available.

Chief Justice Gants also mentioned that he was troubled by a recent American Bar Association report on lawyer and law-student well-being, which showed that a disproportionately high percentage of third-year law students experience depression compared to the general population, and that lawyers have one of the highest suicide rates of any profession.  He noted that lawyers and law students may hesitate to seek mental health assistance, especially as in some states mental-health concerns can preclude bar candidates from passing the character-and-fitness test.  He also observed that the bar as a whole may be less community-oriented than it used to be, and that in general people are becoming increasingly isolated due to changes in technology.  He said that he was considering whether the Massachusetts courts should do anything to address this problem.

Finally, Chief Justice Gants spoke about the Massachusetts Access to Justice Commission, which he co-chairs with Susan Finegan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  He said that the Commission had created the Massachusetts Justice for All Strategic Action Plan with the help of a grant from the Justice for All project, and that the report was available for viewing on the Commission’s website.  He noted that the report focuses in particular on debt collection, housing, and the Family Court, and said that the Commission will likely seek additional grants to help implement access-to-justice solutions in these areas.  He said that the state cannot continue to rely solely on legal aid organizations to provide access to justice, noting that the Legal Services Corporation is chronically underfunded and that its budget is particularly threatened under the current federal administration.  He said that the Commission hoped to create a virtual court service center, and that he hoped to draw other agencies, such as public libraries and social services organizations, into the process.

In response to a question, Chief Justice Gants said that the annual cap on hours for private attorneys handling care-and-protection cases through CPCS had been raised a few years ago from 1,650 to 1,800 hours per year, if CPCS finds that certain conditions are met.  (Just recently, a special temporary exemption was added by the Legislature, allowing for a 2,000-hour cap in Hampden County only, where the need is most urgent.)  He said that he didn’t think it would be helpful to raise the cap further, especially as lawyers taking on these cases might not have the appetite to do more hours.  Instead, he hopes more lawyers will get involved.

A Council member brought up the issue of pathways to judgeships for women and minorities in the state, particularly as it is increasingly difficult for attorneys to get trial experience, which can pose a barrier in the judicial nominating process.  Chief Justice Gants acknowledged that the number of female judges and judges of color in the state is declining, despite efforts by many, himself included, to increase diversity.  He said that ahead of the annual Bench-Bar conference in April, court leaders will meet with the affinity bar associations to discuss leadership development and pathways to judgeship.  He noted that the Governor’s Council does consider trial experience to be an important element in selecting judges, but agreed that it is hard to get this experience, particularly for attorneys in large firms.  He noted that state court judges don’t typically approach counsel to ask them to undertake individual cases, as federal judges often do.  He also said that a disproportionate percentage of incoming judges are former District Attorneys or public defenders, and that this is not ideal, as it is important to have a diversity of practice setting experience among judges.  He encouraged Council members to share their thoughts with the Court and other stakeholders as to how the pool of candidates for judgeships could be broadened.

We’re always pleased to welcome the Chief Justice to Council—and to share his report with you here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Council Supports Streamlined Post-Conviction Relief for Human Trafficking Survivors

In January 2014, the BBA launched the Human Trafficking Subcommittee of the Delivery of Legal Services Section. Following a successful Human Trafficking Symposium in June 2013, the BBA formed this Subcommittee so that we could continue to focus on the issue. Alec Zadek of Mintz Levin was selected as a co-chair upon its launch and has remained in the position over the past four years, and he’s now joined by Lavinia Weizel, also of Mintz Levin.

Since its launch, the Subcommittee has hosted a number of programs and developed an interest in a number of policy proposals, including H. 766, An Act to Reduce Sexual Exploitation of Human Trafficking, which Alec and Lavinia helped to draft. This bill, and the similar S.906, An Act to enhance the lives of survivors of human trafficking, establishes procedures for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker.

Initially, the Human Trafficking Subcommittee, with endorsement from the full Delivery of Legal Services Section, sought BBA support for H.766, but in the meantime, as part of the Criminal Justice Reform debates, both H.766 and S.906 were included as amendments in the respective House and Senate packages. Each of the amendments contained various, mostly minor, modifications and are now in Conference Committee. The Conference Committee will report out one of the versions, combine the two and report out a hybrid, report out an entirely different version, or decline to report out any version or hybrid.

Broadly, all of the proposed versions of the legislation would update the Massachusetts human trafficking laws passed in 2011, to address those instances when individuals operating under the control of a trafficker are arrested and convicted of prostitution-related offenses. More than thirty other states have passed similar laws, which streamline the process of vacatur, and often record sealing, for those who have been trafficked. Existing laws in Massachusetts allow criminal defendants to seek post-conviction relief under the Massachusetts Rule of Criminal Procedure 30(b), but this process is complex, unpredictable, expensive and often challenging for indigent survivors to navigate on their own.

Legislation that addresses this challenge can ease the process through a number of means, including the creation of a presumption, upon a showing that the survivor was trafficked at the time of the underlying offense, that a conviction for one of the relevant offenses was the result of human trafficking. In addition, traditional hearsay rules can be relaxed so that official documentation can be considered by the court, reduce the need for voluminous filing through the use of a standardized form, and provide for the automatic sealing of records in certain circumstances.

Because of the various versions pending, and because advocates like Zadek and Weizel felt any of the proposed language would be a major improvement in the processes of post-conviction relief for survivors, the proposal eventually evolved into a broad statement of support for the creation of a streamlined process, without comment on any specific language. Following an enlightening presentation by Zadek and Weizel, the Council voted to endorse the proposal.

With the vote, the BBA expresses its support for legislation that would create an efficient, and less-onerous, process for survivors to pursue vacatur of certain offenses that result from human trafficking – especially for acts undertaken as a juvenile – and sealing of arrest records and any other criminal records associated with such convictions. From an access to justice perspective, the creation of a streamlined process is crucial to ensure that survivors have an accessible, efficient, and effective means to remove and reduce barriers to rebuilding their lives.

The presence of a criminal record creates major legal and practical barriers for individuals seeking critical life necessities, including, but not limited to, employment, housing, education, and healthcare. The recent BBA report on Criminal Justice Reform, No Time to Wait, discusses the broad array of serious and long-lasting consequences that accompany criminal convictions. For survivors of human trafficking, who often face these barriers on account of criminal convictions for acts completed while under the control of a trafficker, that burden is especially unwarranted. Without this process survivors of trafficking, facing unemployment, housing insecurity, and a lack of access to other crucial services, are more likely to find themselves back under the control of a trafficker or in other difficult or dangerous situations that can undermine their ability to successfully re-integrate into society.

The BBA is proud to support measures that will create meaningful access to post-conviction relief for survivors and will be respectfully urging the conference committee to ensure that this opportunity to improve access to justice for these survivors is not missed. Continue to watch this space for more updates about the progress of these proposals, and the continuing criminal justice reform debates.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Conversion Therapy Ban Update

You may recall that the BBA is continuing its advocacy in support of H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny. These two identical bills would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. Over the summer, we presented testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities, and you can read about that opportunity and why we support the proposed bills here. As we outlined there, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe.

Just this week, we continued that effort by submitting a letter to Speaker of the Massachusetts House of Representatives, Robert DeLeo, respectfully urging him bring the bill to the House floor for a vote. The letter noted the BBA’s own long history of defending principles of non-discrimination and equal protection and focused on a few of the legal aspects of the legislation.

While the future of federal protections for lesbian, gay, bisexual, transgender, and queer (LGBTQ) populations remains under threat, it is crucial the Commonwealth ensures that all residents, regardless of sexual orientation and gender identity, are protected from abusive and discriminatory processes – especially children. Hopefully, these protections will finally be codified this year, and Massachusetts can join the nine other states that currently have laws barring the use of conversion therapy on minors. We will, as usual, keep you posted about the status of H.1190 and S.62.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Supports Pro Hac Vice Fee Increase

In 2011, the BBA Council voted to support the Massachusetts Access to Justice Commission proposal to institute a pro hac vice admission fee, as had already been done in 41 other states and the District of Columbia. Following this proposal, the Supreme Judicial Court (SJC) Rules Committee proposed, and the SJC eventually adopted, SJC Rule 3:15, Pro hac vice registration fee, which imposes a $301 per-case fee for out-of-state lawyers seeking to appear in Massachusetts Courts, unless the attorney is providing pro bono legal assistance to an indigent client. Under Rule 3:15, the proceeds go to the IOLTA Committee and are then distributed, in the same proportions as is its other revenue, to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation, and the Boston Bar Foundation, in order to provide civil legal aid to low-income residents of Massachusetts.

Earlier this year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and last month the President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. The increase itself would still place Massachusetts within the range of existing fees, and states like Connecticut and Maine have fees that are above $551.

Overall, the BBA Council viewed the increase as reasonable within the context of the fee rates in other states and also an important way to increase access to justice in the Commonwealth. The initial proposal stemmed from a sharp drop in IOLTA revenue, and unfortunately, projections for IOLTA revenue remain worryingly low, and as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth. The fee rise would result in a net increase of nearly $90,000 to legal services programs. We are very thankful of the Court’s long-standing support of access to justice and hope they will bolster these efforts by moving forward with the fee increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Brief in Commonwealth v. Lutskov

On Tuesday, the BBA filed an amicus brief in Commonwealth v. Lutskov (SJC-12411), a case in which the Supreme Judicial Court solicited amici last November. Our brief, written by Meredith Shih of Wood & Nathanson, LLP, on behalf of the BBA Amicus Committee and in close collaboration with Amicus Committee Co-Chairs, Elizabeth Ritvo, of Brown Rudnick, and David Siegel of New England Law | Boston, argues that the application of adult mandatory minimum sentences to juveniles violates the Massachusetts Declaration of Rights.

We are happy to have had the chance to respond to the SJC’s Amicus Announcement, especially in a case that touches on a number of issues with a significant BBA history. Keep reading to learn more about the case, the BBA’s background on these issues, and the brief.

Case Background

Appellant Maksim Lutskov was indicted by a Hampden County Grand Jury on December 27, 2000, as a youthful offender for armed home invasion, two counts of assault and battery with a dangerous weapon, armed assault with intent to rob, assault with a dangerous weapon, and assault and battery. He was tried by a jury in the Hampden Juvenile Court in November 2001, adjudicated a youthful offender on all charges, and sentenced to the statutory adult mandatory minimum sentence of twenty years in prison for armed home invasion, with a number of concurrent lesser terms and ten years’ probation. In 2004, the Appeals Court affirmed the adjudication and the SJC denied further appellate review.

Nearly a decade later, in August 2013, the Appellant filed a pro se Rule 30 (post-conviction relief) motion, which was denied in October 2013. Then, in November 2016, the Appellant filed, with the assistance of counsel, the Rule 30(a) motion that is the subject of the case before the SJC. The Juvenile Court denied the motion in April 2017, the appellant provided timely notice of appeal, and the case was entered on the Appeals Court in July 2017. The Court allowed the appellant’s application for Direct Appellate Review in October 2017.

The Rule 30(a) motion before the SJC raises a number of issues, including that the Commonwealth’s trial evidence was insufficient to permit a youthful offender adjudication as the Commonwealth did not offer adequate evidence to show the appellant was of the appropriate age. The SJC’s amicus solicitation, however, focused narrowly on the second argument presented by the Appellant, which is that Article 26’s prohibition on cruel or unusual punishment bars the application of adult mandatory minimum sentences to juveniles and requires individualized sentencing. The Announcement asked:

Where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in the State prison (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights. See Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013), and Commonwealth v. Perez, 477 Mass. 677 (2017).

BBA Background

Though the BBA has not previously adopted a policy position that relates directly to the argument presented in the brief (that the imposition of adult mandatory minimum sentences to juveniles violates Article 26), we do have a long history of speaking out on criminal justice reform, especially in relation to mandatory minimum sentences, and juvenile justice.

The BBA has been opposed to mandatory minimum sentences for decades, advocating for reform since at least 1989 when we released a report calling attention to the harms wrought by misguided mandatory minimums. Our opposition to these sentences stems from the fact that they prevent judicial consideration of proportionality by rendering one-size-fits-all punishment, often involving unduly long sentences which make reintegration and reentry more difficult, and remove the discretion of judges to impose the context-specific individualized sentences that would ensure the punishment does in fact fit the crime.

In addition, the BBA has a longstanding commitment to juvenile justice. In a 1994 report, The Massachusetts Juvenile Justice System of the 1990s: Re-thinking a National Model, a BBA Task Force discussed the differences between juveniles and adults when considering certain legislative proposals to remove judicial discretion in some hearings for juveniles. That report explained why juveniles were treated differently than adults for sentencing purposes and noted that removing discretion and applying mandatory minimum sentence to juveniles “cast aside certain basic tenets of the juvenile justice system as they have evolved for more than a century.”

Also, in 2013, prior to the Diatchenko decision, the Criminal Law Section reached consensus and set forth principles – later adopted by the BBA Council – on three areas of juvenile life without parole sentencing when considering then-proposed bills. One of those principles provides that, before being sentenced to life without parole, the appellant convicted of first degree murder must have the right to an individualized evidentiary sentencing hearing which considers, in addition to the traditional factors required by law, a number of issues specific to juveniles, including the hallmark features of adolescence and the potential for rehabilitation and capacity for change.

Amicus Brief

In laying out the BBA’s interest as Amici, the brief begins by tracing our history of sustained involvement with issues of criminal justice, especially opposition to mandatory minimums, and juvenile justice reform outlined above. Then, the brief moves into the argument, that:

“Under both federal and state constitutional frameworks, the application of adult mandatory minimum sentences to juveniles violates Article 26’s ban on cruel and unusual punishment. To guarantee that all adult sentences applied to juveniles are proportional, juvenile judges must conduct individualized sentencing hearings, taking into consideration the factors established in Miller v. Alabama, 567 U.S.

At the federal level the United States Supreme Court has recognized the constitutional differences between adults and youth in sentencing matters. In 2005, the Court held, in Roper v. Simmons, 543 U.S. 551 (2005) that imposition of the death penalty on juveniles under eighteen years old violated the 8th amendment’s ban on cruel and unusual punishment. Five years later, in Graham v. Florida, 560 U.S. 348 (2010), the Court found an 8th amendment violation in sentencing of a juvenile to life without parole in non-homicide crimes. Then, in 2012, the Court expounded on the factors that make youth constitutionally different from adults for sentencing purposes and held that a mandatory sentence to life in prison without parole applied to a juvenile convicted of murder also violated the 8th amendment.

The Massachusetts SJC has relied on a Miller analysis in deciding similar cases. In 2013, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), it held that the mandatory imposition of life without parole for juveniles under eighteen who committed murder violated Article 26’s prohibition on cruel and unusual punishment. The Court, however, also went on to hold that even the discretionary imposition of the sentence also violated Article 26, as it was unconstitutionally disproportionate given the unique characteristics of youth. In a series of cases since Diatchenko, the court has continued to analyze the constitutional distinctions between youth and adults but has left “open for future consideration ‘the broader question whether discretion is constitutional required in all instances of juvenile sentencing.’” Commonwealth v. Okoro, 471 Mass. 51 (2015), citing Commonwealth v. Brown, 466 Mass. 667 (2013)

Most recently, in the Case of Commonwealth v. Perez, 477 Mass. 677 (2017), the SJC held that a juvenile convicted of a non-murder offense or offenses could not be punished more harshly than a juvenile convicted of murder unless, after a hearing that considers the Miller factors, the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder. Applying the constitutional frameworks outlined above, the BBA’s brief urges the court to take the next logical step: answer the question posed in Okoro and Brown in the affirmative, that discretion is required in instances of juvenile sentencing.

Finally, the brief encourages the court to use this opportunity to set forth with clarity what a Miller-type sentencing hearings should require. In Perez, the Court has already provided that such a hearing involves meaningful consideration of three factors:

  1. The particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences;
  2. The family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself; and
  3. The circumstances of the … offense, including the extent of [the juvenile’s] participation in the conduct and the way familial and peer pressures may have affected him.

The brief notes that records of the sentencing should clearly reflect that the sentencing judge considered these factors of youth, as mitigating factors, which would ensure the judges take into account the important distinctions of youth and craft proportional sentences within the bounds of Article 26.

A big thank you goes to our Amicus Committee for their thoughtful analysis of the SJC’s amicus announcement, and especially to co-chairs David Siegel and Liz Ritvo and drafter Meredith Shih! Oral argument is scheduled for March 5, and we’ll be sure to keep you updated.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

Walk to the Hill Recap and Budget Update

Last week, hundreds of civil legal aid supporters rallied at the State House at Walk to the Hill, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This event annually falls immediately after the release of the Governor’s budget recommendation and kicks off the BBA budget advocacy, which we previewed for you recently, in an exciting fashion. Keep reading for a recap of last week’s Walk, a request for those of you who couldn’t attend, and an update as to how our other budget priorities fared in Governor Charlie Baker’s proposal.

Walking for Justice

Walk to the Hill is coordinated by the Equal Justice Coalition, in which the BBA is an equal partner with the Massachusetts Bar Association and MLAC. Each year, it proves to be one of the largest advocacy events of its kind in the Commonwealth, and we are thrilled that 2018 was no different. Though the final tally is still being counted, roughly 700 lawyers and law students attended this year’s Walk to ask for an increase of $5 million in the MLAC line-item for a total appropriation of $23 million. We are grateful, as always, that the BBA got to be a part of this stunning show of support for access to justice.

Michael Avitzur, BBA Director of Government Relations & Public Affairs, addresses the BBA Walk to the Hill Breakfast attendees

As always, our Walk to the Hill day started off with a BBA Breakfast where we were joined by in-house counsel, solo and small firm practitioners, new lawyers, and dozens of UMass Law Students. At this standing-room-only breakfast, Director of Government Relations Mike Avitzur reviewed the talking points, the $23 million ask, and tips on how to talk to elected officials about civil legal aid. After fueling up on pastries and coffee, the BBA Breakfast attendees headed over to the State House and joined the crowd gathering in the Great Hall for the kick off to the Walk.

The impressive Walk to the Hill turnout has helped to build a solid base of support in the legislature, which increased the MLAC line-item from $15 million to $18 million between 2015 and 2017, even at a tough fiscal time when other-line items were not receiving that level of growth. As you know, the BBA’s own Investing in Justice Report has also been a critical tool in this advocacy, showing the great need for civil legal aid and the positive return on investment the state achieves from adequately funding legal services programs.

Walk to the Hill crowd at the Great Hall

BBA President Mark Smith highlighted the findings of this report in his speech to the crowd, noting both that an increase in state funding is critical to achieving access to justice for all and a smart investment. He also offered a few examples as to why, more than ever, a $5 million increase is necessary, pointing to recent natural disasters, and developments at the federal level, including threats to end federal funding for legal aid and changes to immigration policies, all of which are driving up demand for legal help at the state level.

For example, following Hurricane Maria, thousands of evacuees from Puerto Rico have sought resettlement in Massachusetts, including 2,000 school-aged children who need to enroll in local schools. These students, and their families, undoubtedly have pressing legal needs related to, in addition to education, other necessities like housing and health care.

Mark Smith, BBA President and partner at Laredo & Smith, addresses the crowd

President Smith further honed in on the impact of changes to immigration policies, offering two examples in the Commonwealth focused on students and children. First, he relayed a story from the Executive Director of MetroWest Legal Services, Betsy Soule, who held a Know Your Rights briefing on immigration last year at Framingham High School after school administrators asked her to speak to students, many of whom were very worried about their parents’ immigration status, with some afraid to even continue coming to school lest they risk being confronted by an immigration official. Nearly 400 students attended that event, and when Betsy offered to stick around to take specific questions, 80 students took her up on this. Many students, and their families, are facing incredibly significant consequences due to immigration policy changes, including potential deportation, making access to a lawyer more imperative than ever.

Chief Justice Ralph D. Gants also made the connection between immigration policy changes and the need for increased funding for civil legal aid. He gave a number of striking examples as to why $5 million more than last year is needed, noting a dedicated mother of two from El Salvador who cleans Boston offices from 5pm to 2am now faces deportation and separation from her family as her Temporary Protected Status has been suddenly dropped, and a teenage girl who aspires to be an architect but may have to drop out of high school early to support her younger sisters if her parents are deported, as well as a DACA “Dreamer” who has been in the country since she was 7, is enrolled at Northeastern University and whose future is now up in the air. In his powerful remarks, the Chief Justice concluded that “it has never been more important for our brothers and sisters who are poor, undocumented, or displaced to have access to attorneys who can enforce and defend their rights, articulate their claims and defenses, and advocate their cause.”

Chief Justice Ralph D. Gants of the Supreme Judicial Court addresses the crowd

Individuals at the Walk also heard inspiring speeches from EJC Chair Louis Tompros, of WilmerHale and MBA President Chris Sullivan who both highlighted the special role that lawyers play in achieving justice. EJC Chair Tompros noted that legal aid lawyers are “absolute superheroes,” but they needed more resources to meet the great need for services in the Commonwealth, and President Sullivan noted that lawyers have a special duty to ensure that “justice for all” is more than just an empty slogan.

Finally, the crowd was lucky enough to hear a striking personal account of the importance of legal aid from Danielle, a client of Greater Boston Legal Services (GBLS). Danielle relayed her harrowing multi-year struggle to get much-needed benefits for her daughter with sickle-cell disease. She noted that “everyone that touched my case genuinely cares about my daughter,” and that having GBLS in her corner allowed her to focus on the health of her daughter, while letting the lawyers take care of the legal needs.

After that moving and energizing kick-off ceremony in the Great Hall, the 700 lawyers-turned-activists received instructions from Jacquelynne Bowman, executive director of GBLS, and filtered out to offices all over the State House, to spread the word to their respective legislators.

If you were unable to make it to the State House last Thursday, fear not. There is still time to “Talk to the Hill” by calling (or emailing) your legislators to urge them to support a $23 million appropriation for MLAC. As always, the MLAC FY19 Fact Sheet, EJC Talking Points, and our own Podcast on How to Talk to Your Legislator (about Civil Legal Aid) will give you all the tools you need to make the ask.

Plus, keep an eye out for upcoming BBA e-alerts, where we’ll be calling on members for additional outreach and support at each stage of the budget cycle, on MLAC funding and our other priorities. Speaking of which…

Governor Baker’s FY19 Budget                          

The day before Walk to the Hill Governor Baker released his proposed $40.905 billion FY19 Budget, which reflected a 2.6 percent spending increase over FY18. Even though the House and the Senate are free to go a totally different direction on each and every line-item, the Governor’s budget does set a tone for the debate, and it’s worth checking in on how some of our long-standing budget priorities fared. You can also read our recent FYI9 budget letter to the Governor here.

Governor Baker proposed the same 1% increase in funding to the MLAC line-item as last year, making the total proposed appropriation $18.18 million. This, of course, falls quite short of the $23 million ask, but armed with all of the above reasons for why increased civil legal aid funding makes sense, we’ve been able to achieve significant funding beyond the initial proposal in years past. This is what makes your Talk to the Hill and e-alert actions over the next few months so important!

The Governor’s overall Trial Court appropriation of $668.53 million signaled his understanding of the importance of an adequately funded judiciary, but falls $3.4 million short of maintenance funding. We are hopeful that the Legislature will build upon the Governor’s recommendation by adding at least that amount.

The Governor also included additional funds for the Probate and Family Court, which should prove especially helpful given the dire shortage of legal assistance in Care and Protection cases currently plaguing the state. And on the statewide expansion of the Housing Court, where the Governor has showed strong leadership, we were thrilled to see this leadership continue! You may recall that, following four years of advocacy, statewide expansion became a reality last year, when both $1 million in funding and authorizing language were included in the FY18 Budget. As we’ve outlined, in order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the Tenancy Preservation Project and Lawyer for the Day. As such, we are seeking $2.6 million in the FY19 budget to ensure the expansion runs smoothly and efficiently. The Governor recommended this full $2.6 million appropriation in the Housing Court Expansion line-item, and we will make the call for the House and Senate to include this amount in their budgets as well.

As we mentioned, the release of the Governor’s budget is just the first step in a months-long process, and the next major step doesn’t come until mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. Be sure to check out our Geeking Out on the State Budget Podcast for a “101” on the Massachusetts Budget Process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

DA Marian Ryan, Rep. Chris Markey and ACLU’s Rahsaan Hall Discuss Criminal Justice Reform in the Commonwealth

We have spent this entire legislative session focused on the debate over criminal-justice reform.  As we’ve noted here, we released a report last fall, No Time to Wait, in the run-up to the floor debate and vote held in both the State Senate and the House.

Now that both bodies have produced their own blueprints for reform, the next step—hashing out compromises on the many differences between the House and Senate bills—is in the hands of a six-member conference committee appointed toward the end of 2017.  Their work, as is typical, is being conducted behind closed doors, offering little insight into their progress toward final legislation.

So it was informative and timely for us to welcome three major players in that debate to the BBA this week, to get their takes on what they’d each like to see as part of a criminal-justice package, and how they see the issues from their perspectives:

  • Since 2013, Marian Ryan has been the District Attorney for Middlesex County—the largest county in Massachusetts. She broke with the rest of her colleagues to endorse the Senate’s criminal-justice bill, and she recently made news with her decision to instruct her ADA’s to forego cash-bail requests in non-violent, low-level cases in the district court.
  • State Representative Christopher Markey previously served as vice-chair and acting co-chair of the Legislature’s Judiciary Committee, and on the working group for the Council of State Governments’ (CSG) recent review of the Massachusetts justice system. Following 16 years in the Bristol County DA’s office, he now operates his own law practice.
  • Rahsaan Hall, former co-chair of the BBA’s Civil Rights & Civil Liberties (CRCL) Section, is the Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. In that capacity, he is one of the state’s leading advocates for broad and durable criminal-justice reforms. Rahsaan previously worked as an ADA in Suffolk County.
  • Natashia Tidwell of Hogan Lovells, current co-chair of the BBA’s Civil Rights & Civil Liberties Section, moderated the discussion, which was sponsored by both the CRCL Section and the Criminal Law Section.

CRCL Co-Chair Natashia Tidwell with panelists Rahsaan Hall, DA Marian Ryan, and Rep. Chris Markey

Tidwell started by asking each panelist where they saw the most-pressing need for reform in the current system, and Rep. Markey pinpointed drug offenses—including the importance of a shift toward a public-health approach, and away from “tough on crime” policies that have ignored the need for treatment.  Our criminal-justice system isn’t equipped to act as a social-justice system, but the tools are there to direct individuals toward resources that can support them; we just need to be more creative and provide incentives for all stakeholders—judges, prosecutors, defense attorneys, and lawmakers—to act on them.

For Hall, racial disparities in the Commonwealth must be addressed immediately.  What we have now, he says, is more of a criminal-legal than a criminal-justice system, because justice is being denied to so many.  These disparities—which are among the worst in the nation for black defendants and the absolute worst for Latinos and are exacerbated at every point of contact—undermine the argument that our incarceration rate is lower than most other states.  He outlined data showing that mandatory-minimum sentences help drive that problem.  For example, three-quarters of prisoners serving such sentences for drug crimes are people of color.  (These same disparities were addressed in the BBA Report, which reiterated our opposition to mandatory minimums and called, once again, for their repeal in all drug cases.)

DA Ryan talked about her efforts to treat defendants as individuals and focus more on preventing recidivism rather than pushing cases through the system en masse—which she sees as merely kicking the can down the road.  By the time someone is processed through a DA’s office, something has gone very wrong in their life, and frequently it’s the result of co-occurring problems such as substance abuse, mental-health, or social disorders.  She advocates for new approaches to break the cycle of recidivism, which is too often a multi-generational one.

One such alternative approach the DA has embraced—overcoming her own initial skepticism, she said—is restorative justice, which brings both victim and offender together, alongside law-enforcement and a judge, but outside the court system.  (The BBA’s PILP program held a symposium on restorative justice in 2016.)  DA Ryan has observed these “circles” and witnessed transformation there unlike any she has seen in the traditional justice system.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

When asked what reforms they’d like to see included in legislation, Hall said we need to act on “front-end” reforms—such as keeping people from entering the justice system in the first place and reforming charging practices—as opposed to the back-end focus that the CSG group settled on.  He feels an urgency now, because while the pendulum has swung toward consideration of smarter criminal-justice policies, he fears that this year’s legislative package may be the last opportunity to achieve significant change for the next decade.

Rep. Markey returned to mandatory minimums, arguing that while there is a place for such sentences in a prosecutor’s arsenal—such as in helping to make a case against a violent offender—they can produce unjust and “ridiculous” imbalances, for example when a drug offense produces a longer sentence than the rape of a child.  He’d like to see legislation address that, perhaps in part by requiring judicial findings or allowing part of a mandatory minimum to be served under community supervision (although he worries that we have too many people on probation already).  But he also feels that prosecutors have the tools they need to handle their cases, even if mandatory minimums went away entirely.

He further decried the increase in collateral consequences that ex-offenders face and argued that judges should have the authority to deal with charges in a way that obviates them.  DA Ryan added that her office offers diversion to defendants for drug crimes, juvenile offenses, and young-adult offenders, so as to relieve them of the burden of collateral consequences, where appropriate.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

Both DA Ryan and Rep. Markey said that, in order for meaningful reforms to occur, all stakeholders in the system must be willing to yield some of their power for the greater good.  And in response to a question from former US Attorney Carmen Ortiz, they both agreed that people need to step outside their comfort zones and addressed the issue of educating law enforcement on best practices: The DA said she and other law-enforcement officials she’s worked with in Middlesex County have been able to do that.  And Rep. Markey singled out police officers, who he said were more professional than ever these days, and understand that sometimes the people they encounter just need a second chance.

On that note, we hope this constructive dialogue is mirrored across the street within the conference committee.  We look forward to their end product, and we hope that they will move forward on each of the six keys issue areas that our No Time to Wait report addressed.

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: SJC holds judges can consider victim statement in sentencing

Last month, the Massachusetts Supreme Judicial Court made a landmark ruling on victim testimony, holding in Commonwealth v. McGonagle that judges can consider the sentence recommendations of crime victims. The ruling feels especially timely given the recent national attention on the role of victim testimony, and the judge, in the Larry Nassar Abuse case.

Here in the Commonwealth, state law has allowed victims to appear in court to share personal accounts and recommend a sentence for the past two decades. Massachusetts General Law, 258B, Section 3(p) permits “victims, to be heard through an oral and written victim impact statement…against the defendant about the effects of the crime on the victim and as to a recommended sentence.”  In McGonagle, an assault and battery case, the victim recommended a sentence to the judge at the sentencing hearing, and the defendant thereafter challenged the portion of M.G.L. 258B which permits the victim to recommend a sentence.

The challenge argued that consideration of the victim’s recommended sentence violates the 8th amendment of the U.S. Constitution and Art. 26 of the Massachusetts Declaration of Rights, which prohibits cruel and unusual punishment as well as the constitutional guarantee of due process. Part of the Defendant’s argument relied on the 2016 Supreme Court decision in Bosse v. Oklahoma, which precluded the use of victim sentencing recommendations to the jury in a capital punishment case.

The SJC ultimately distinguished the constitutional concerns related to the jury phase of a capital murder trial from the presentation of evidence to a judge in a non-capital case.  Justice Lowy’s opinion for the unanimous court concluded that “[w]e all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant’s due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.”

You can read the full opinion here.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Let the BBA Budget Advocacy Begin!

It’s that time of year when our budget priorities become a focus here in the Government Relations Department of the Boston Bar Association (BBA). With Governor Charlie Baker’s Budget for Fiscal Year 2019 (FY19) to be released next week, we wanted to offer a refresher and a preview on what we’ll be focusing on in the coming months. First, though, make sure you’ve cleared your calendar for next Thursday’s annual Walk to the Hill for Civil Legal Aid (more below)!

Trial Court

As usual, we’ll be urging, at each step of the budget process (from the Governor’s initial budget to the House to the Senate to the Conference Committee and back to the Governor), for adequate funding for the Trial Court appropriation. The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY16 staffing level and a 19% reduction since FY02. Despite these efforts, and even with steady increases in funding from the Governor and Legislature, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

This year, we are advocating for the Trial Court’s requested maintenance-level appropriation of $671.2 million—which represents an increase of nearly 3% over the current fiscal year—plus any necessary increases that may result from collective-bargaining negotiations.

Housing Court

We were thrilled to report that, following four years of advocacy led by the Massachusetts Law Reform Institute and supported by the BBA, statewide expansion of the Housing Court finally became a reality in the Commonwealth when both $1 million in funding and authorizing language were included in the FY18 Budget. This expansion means that the 84 cities and towns that previously lacked access—representing nearly a third of the state’s population— now enjoy the many advantages Housing Court has to offer.

As we’ve reported on, many times over, the Housing Court offers many significant benefits, including judges who have specialized knowledge on all, often complex, housing law matters, and housing specialists, who help tenants and landlords settle and mediate cases, saving the time and costs associated with litigation. Another key benefit of the Housing Court is the Lawyer for the Day Program, which has offered, since 1999, free advice, mediation, and case litigation on “eviction day” for unrepresented tenants and landlords that cannot otherwise afford legal assistance. Also, the Tenancy Preservation Program (TPP) provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. All of these advantages ultimately make the Housing Court a true example of efficiency, featuring the lowest cost per case of any Trial Court Department.

Implementation of the expansion is now underway, and the search has begun for two new judges and a Clerk Magistrate, and Barnstable, Middlesex, Norfolk, Dukes, Nantucket, and Suffolk counties are all expanding the Housing Court to every resident within their jurisdiction. In order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the TPP and Lawyer for the Day. As such, we are asking the Governor to include $2.6 million in the FY19 Budget to ensure the expansion, including the creation of a new sixth division, runs smoothly and the Housing Court remains a model of efficiency. An additional $500,000 appropriation for the TPP line-item (7004-3045) would allow for the hiring of 7.5 full time TPP providers, so that program, too, can expand statewide. Plus, estimates show that TPP saves the state between $5.5 and $11 million in shelter costs, and a thorough TPP expansion could result in an additional $2.5 – $5 million in savings.

CPCS

This year, we will also be urging, as usual, adequate and timely funding for the Committee for Public Counsel Services (CPCS), which plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s 2015 recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and increased funding for CPCS would be a significant and beneficial step in that direction.

CPCS funding in the FY19 budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding would allow CPCS to increase compensation for bar advocates, or private attorneys who defend indigent clients, which would help to find attorneys willing to take on these tough cases and protect the constitutional rights of these parents and children.

MLAC

Last, but certainly not least, each year we focus on adequate funding for civil legal aid through the MLAC line-item. MLAC was level-funded in the FY18 budget, for a total appropriation of $18 million. This year, we are supporting MLAC’s ask for a $5 million increase in the line-item for a total appropriation of $23 million.

In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding when it revealed that each year, MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants. Unfortunately, due to shortages in funding and increasing demand, approximately 45,000 otherwise eligible individuals are turned away each year in Massachusetts. In addition, changes in federal policies on issues such as immigration, as well as proposed reductions in funding to the leading federal provider of legal service programs, the Legal Services Corporation, threaten to increase this demand even further—just as continuing challenges like the opioid crisis and emerging issues like the resettlement of individuals impacted by Hurricane Maria and other natural disasters add to the burden borne by legal services. Unfortunately, when one is unable to access legal services, the consequences can be devastating, as often one’s family, home, health, and job may be at stake in civil legal matters.

In light of this ever-expanding need, and the devastating consequences, it is vital that the state adequately fund civil legal aid programs in the Commonwealth. Fortunately, as Investing in Justice established, legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. A $5 million increase in the MLAC line-item would enable programs to hire 31 additional attorneys, 8 additional paralegals, 6 support staff, and assist more than 7,500 low-income residents of the Commonwealth.

As you likely know, the budget advocacy for MLAC and civil legal aid ramps up each January with one of the largest lobby days of the year: Walk to the Hill. At this event hundreds of attorneys converge on the State House to demonstrate their support for civil legal aid. The event kicks off with speeches from Chief Justice Ralph Gants, President of the BBA Mark Smith, President of the MBA Chris Sullivan, and a client who benefited from legal services, and concludes with the attorneys heading out to speak with their own state senators and representatives. We hope to see you all at the State House on January 25 at 11am for this important event, and we strongly encourage you to stick around for the meetings with lawmakers. Rallying at Walk to the Hill and meeting with legislators immediately afterward offer the best opportunity for BBA members and the legal community as a whole to convince the Legislature of the importance of civil legal aid.

If you don’t know your legislators, you can look them up here, and if you’re not sure what to say, refer to these handy talking points or listen to our Issue Spot Podcast on How to Talk to Your Legislators. If you’d like a quick refresher day-of, join us here at the BBA at 9:30am for our Annual Pre-Walk Breakfast, where we’ll review the budget ask and key talking points.

As our budget advocacy gets underway, there will be plenty of opportunities beyond Walk to the Hill for you to join us in advocating for our priorities, which will help to ensure access to justice for all residents of the Commonwealth and an efficient and effective judicial system. Watch for e-alerts coming your way, asking you to reach out (again) to your elected officials at key points in the process during budget season! In the meantime, you can learn about the state budget process by listening to this podcast focused on civil legal aid in particular, and about the federal budget and budget advocacy at that level from our Federal Budget Process 101 podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association