Retired Northern Ireland Appeals Court Judge Sir John Gillen Addresses BBA Council

In July, the BBA Council was honored to be joined by Sir John Gillen, a retired Lord Justice of Appeal of Northern Ireland, who was recently tapped to conduct a comprehensive review of the handling of serious sexual crimes by Northern Ireland’s legal system. The review originated following a controversial, high-profile case involving two professional rugby players, which highlighted the problems with the process of trying these cases. As part of the review, Sir John is examining the laws of 13 other countries, including the United States, and we were grateful to be a part of the process during his Boston stop.

Earlier in the day, Sir John had met with several judges and prosecutors, as well as a group of practitioners representing both victims and defendants, convened by the BBA. At the Council meeting Sir John offered an overview of his work, which he is undertaking with a team of seven staff members and an eleven-person advisory panel made up of academics, lawyers, and representatives from survivors’ advocacy groups.

Sir John noted that in Northern Ireland, less than 6% of people who complain of serious sexual offenses see a conviction of the alleged perpetrator and that these cases have a 45-50% conviction rate when they actually go to court, much lower than the 87% conviction rate for non-sexual offenses. He said that 44% of complainants (79% of whom are women, and 21% of whom are men, on average) drop out because of the daunting nature of the legal process. He also noted that an estimated 60% of sexual assaults in Northern Ireland are never reported. In his view, these statistics reveal that, in addition to legal and procedural changes, a radical cultural shift is needed.

In addition to looking at measures and reforms adopted in other jurisdictions, Sir John said that he had interviewed 20 complainants in these cases about their experiences with the legal system, and hoped to interview at least 20 more. Sir John said some areas he was examining as he crafted his recommendations included: whether modifications needed to be made to the concept of open justice and open courts in sexual assault cases, particularly in the social media era; the role of anonymity for both the complainant and the accused in these cases; the problem of juror bias, including with regards to the prevalence of rape mythology and a lack of common understanding of the concept of consent; the possibility of introducing an option for pre-recorded evidence, particularly in cases involving children; areas for tightening rape shield laws; the possibility of mandating the right to legal representation for complainants in sexual assault cases; and the introduction of government-funded public education campaigns to inform people about consent and to challenge common misconceptions about sexual assault.

In response to a question by a Council Member, Sir John also noted the role of education, saying that proper training for jurors, judges, and both prosecutors and defense attorneys would be essential to improving the system. He also said he was continuing to learn more about the use of alternative resolution mechanisms, like those used at many American universities.

As mentioned, we at the BBA are very pleased we had the chance to convene a group of experts to discuss Sir John’s review, and we’ll be sure to keep you posted on the final report.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Important Protections for Vulnerable Immigrant Youth Included in FY19 Budget

In addition to the good news for a number of our key BBA budget priorities, which you can read more about here, the Legislature and Governor also took an important, and long overdue, step to provide critical access to justice for a very small but very vulnerable set of young people between the ages of 18 and 21. The final FY19 budget includes, in Outside Sections, language that would allow immigrants who are at least 18 years old, but have yet to turn 21, to make the case to federal authorities that they quality for special status under existing federal law, because they have been abused, neglected, or abandoned, and would be at risk if returned to their home countries.

The need for this statutory language tracks back to 1990, when the federal government began providing for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court.

However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20. Thus, in Massachusetts, there was a small class of individuals that would otherwise qualify for SIJ status, but might be barred from doing so simply because the Probate and Family Court would not make a finding due to their age. According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but this was not uniform and judges had no guidance on the matter.

The BBA first weighed in on this issue in 2014, supporting An Act relative to abused, abandoned, or neglected immigrant juveniles, which would have statutorily extended Probate and Family Court jurisdictions to this discrete group. Then, in 2015, we filed an amicus brief in Recinos v. Escobar, arguing that the Probate & Family Court has jurisdiction, in equity, over those seeking status as special immigrant juveniles (SIJ’s) and may make predicate special findings to support SIJ applications for those up to age 21.

The court accepted the argument, but the ruling did not obviate the need for a statutory remedy as a permanent and comprehensive solution to this limited but urgent problem. In fact, the U.S. Citizenship and Immigration Services (USCIS) has recently begun acting in defiance of the spirit, if not the letter, of Recinos, finding that SIJ applicants who are over the age of 18 have not met their burden of proof, and claiming that the Legislature “has established that a child is someone under the age of 18” and that therefore our Juvenile Court lacks jurisdiction to make the necessary dependency findings for anyone between 18 and 21.

Now, Recinos is explicitly codified into law, granting the Court that statutory jurisdiction, applicable retroactive to the date of the Recinos decision and to any petitions that were wrongfully denied or revoked in this manner, based on the child’s age. As lawyers, we recognize that while the courts enjoy significant power to right wrongs through their equitable jurisdiction, only the Legislature can act to provide clear statutory parameters and guidelines for the courts’ authority. Here, given the position of the USCIS, it is even clearer that legislation was the only mechanism by which a pathway to stable legal status can be offered to all at-risk juveniles who meet the federal law’s requirements, without having to rely on the discretion and the legal interpretations of individual judges on a case-by-case basis. Furthermore, these provisions spell out a well-defined framework for the courts in handling such cases – helping judges and their staffs, as well as applicants and their legal counsel (if any) to understand how to file and pursue a claim.

You can learn more about our past legislative and amicus advocacy on this issue here. This year, we once again advocated in support of this important statutory provision, sending letters to the Chairs of the Judiciary Committee, and eventually the budget conference committee and the Governor.

A big thanks goes to bill sponsors Senator Cynthia Creem and Representative Louis Kafka, as well as the Governor, and the House and Senate for their support. And, of course, a very big thanks goes to the many supporters of the bill, including the courts, bar associations, and legal-service providers like GBLS who represent the individuals whose ability to stay in Massachusetts – and with it their safety and security – are at stake.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Governor Signs FY19 Budget

Following weeks of conference committee debate, the final FY19 budget proposal finally made its way to Governor Charlie Baker’s desk last week, for signature and the opportunity for line-item vetoes. As you may have seen in our statement last week, the BBA was very pleased with how the final plan produced by the conference committee addressed our budget priorities, and we are happy to report that the Governor also approved most of our budget priorities in full.

For a recap of how we got here, check out our past Issue Spots on the Governor’s proposed budget, the House budget, and the Senate budget. Keep reading to learn more about where our priority items ended up in the Final FY19 Budget!

Massachusetts Legal Assistance Corporation (MLAC)

We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over. As you’ll recall, this year we asked for a $5 million increase in the MLAC budget line-item (#0321-1600), for a total appropriation of $23 million. The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million and the Senate budget appropriated $21 million.

We are very pleased that the conference committee recognized just how important funding for civil legal aid is to the Commonwealth, appropriating $21,040,000 in H.4800, and the Governor approved the full amount! A $3 million increase in the line-item will enable MLAC-funded programs to assist thousands more qualified Massachusetts residents while saving the state money elsewhere in the budget.

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for nearly four years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget. However, for the expansion to be successful, the full panoply of benefits must be afforded to all residents of the Commonwealth, so the Housing Court must be adequately staffed and include the important parallel expansion of programs like Lawyer for the Day and the Tenancy Preservation Program (TPP), which 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. In light of this, we supported a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, a long-time supporter of statewide expansion, proposed the full $2.6 million, while the House budget appropriated $1.5 million and the Senate $2.6 million. Thankfully, the conference committee followed the Senate’s lead on this and provided for the full $2.6 million, which the Governor approved. For the TPP, the Governor proposed $500,000, the House $750,000, and the Senate the full $1.3 million. The conference committee also followed the Senate’s lead here, appropriating the full $1.3 million in H.4800, which the Governor also approved. We are grateful the Governor continued his leadership in the area and approved the full amounts for both of these important line-items, ensuring the benefits of the Housing Court are fairly and efficiently extended to all residents of the Commonwealth.

Trial Court

We also know just how important it is that the Trial Court receives adequate funding, and we have been, as usual, advocating for funding sufficient to allow it to maintain operations at current standards and also further enhance efficiencies and improve the user experience. For the FY19 Budget, we supported the Trial Court’s request for a maintenance-level appropriation of $671.1 million. As the main point of contact with the justice system for most Massachusetts residents with a legal issue, an adequately-funded Trial Court is necessary for ensuring the fair administration of justice.

The Governor’s budget went some way towards this maintenance funding, and the final House and Senate budgets included the full maintenance request. Fortunately, the conference committee also recognized the importance of these line-items and provided the resources necessary for the court system to continue to operate at a high level. The Governor signed off on the full Trial Court appropriations in H.4800, helping to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth.

Committee for Public Counsel Services

Finally, we continued to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520). As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.

The conference committee amount in H.4800 signaled its support for CPCS through its generous FY19 appropriations, which thankfully the Governor approved in full. Unfortunately, the FY19 budget will not include an increase in the billable hours cap for private assigned counsel, but the BBA will continue to advocate for it.

Residential Re-Entry Services

As you may have seen in our recent advocacy alert, we added an additional item for our budget ask in the Senate: funding for residential re-entry services to reduce recidivism. (Check out our letter to the Senate where we provide more detail as to just why this line-item is so important). As you know, Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective through the enactment of historic reforms earlier this year. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339-1011, which would offer grants for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community.

The House budget proposed a $3 million appropriation for this line-item, the Senate budget did not appropriate any funds to this line-item, but we were grateful the Conference Committee recognized its import and included the full $5 million ask we endorsed. Unfortunately, the Governor reduced this final figure to $2.5 million, but we are hopeful that the Legislature will pursue an override to provide the full appropriation. That would go a long way toward extending this important service in the Commonwealth, and perhaps lay the groundwork for similar initiatives to be expanded in future years.

We are grateful to Governor Charlie Baker and the Massachusetts House and Senate, notably Speaker Robert DeLeo, former (as of yesterday) Senate President Harriette Chandler, House Ways and Means Chair Jeffrey Sánchez, and Senate Ways and Means Chair (and new Senate President) Karen Spilka, for their recognition of the importance of these BBA budget priorities. And a special thanks goes out to our members who responded to our numerous asks and reached out to your legislators urging them to support key amendments related to access to justice and criminal justice reform.

You can trust that we’ll be back next year, once again advocating for those line-items that will help to facilitate access to justice for all in the Commonwealth and ensure the fair administration of justice!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Hosts Suffolk DA Candidate Forum

On Wednesday, five of the six candidates in the Suffolk County District Attorney’s race came to the Boston Bar for a forum in which they fielded questions from two distinguished moderators and the audience.

State Representative Evandro Carvalho, Assistant District Attorney Greg Henning, defense attorney Mike Maloney, former Roca Director and CPCS attorney Shannon McAuliffe and former Assistant U.S. Attorney and MassPort, MassDOT and MBTA General Counsel Rachael Rollins joined us for the forum. Suffolk Law School Professor and former prosecutor Christina Miller and Northeastern University Law School professor Daniel Medwed moderated the discussion.

The candidates responded to questions on topics such as the use of court-ordered sobriety as a condition of probation and how they would help extend positive trends in crime and incarceration rates. The moderators touched on broad policy questions but also focused on some of the “nuts and bolts” issues of managing the largest DA’s office in the state, with a $20 million budget and a staff of more than 200 attorneys, asking what the candidates’ practices would be on seeking cash bail and how they would guide Assistant District Attorneys on charging decisions and plea offers. The candidates were also asked to share their views on how the District Attorney’s Office should handle cases where one or more party may face immigration consequences, and whether ICE should be allowed to make arrests in and around courthouses. And audience-submitted questions included one on how to protect victims and witnesses and ensure their appearance at trial.

A networking reception followed, where members of the audience had the chance to meet the candidates one-on-one. This forum was co-sponsored by the Boston Bar and its six affinity bar partners: the Asian American Lawyers Association of Massachusetts, the Massachusetts Association of Hispanic Attorneys, the Massachusetts Black Lawyers Association, the Massachusetts Black Women Attorneys, the Massachusetts LGBTQ Bar Association and the Southeast Asian Bar Association of Greater Boston.

BBA President Mark Smith, Elysa Wan of the AALAM board, and moderators Professor Christina Miller and Professor Daniel Medwed

Video of the forum is available for viewing online at this link.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Massachusetts Legislature Passes Civics Education Requirement

Earlier this year, the BBA Council endorsed legislation that required the inclusion of civics education in all public schools and outlined, in greater detail than existing law, the content of the civics curriculum. The House also passed a version of the bill in May, and a conference committee was assigned to work out the differences. With only a few days left in the legislative session, we are happy to report that the conference committee released its final report, and the legislature officially passed S. 2631, An Act to Promote and Enhance Civic Engagement, on Wednesday!

As you’ll recall, the legislation arose from a concern among many, including students, about the inconsistency in civics education, though technically a required curriculum, across Massachusetts schools. The final bill requires schools to teach civics in order “to promote civic service and a greater knowledge thereof and to prepare students, morally and intellectually, for the duties of citizenship.” It will go into effect in the 2020-21 school year. The curriculum will include coverage of:

  • history of the United States of America;
  • the Constitution of the United States, including the Bill of Rights;
  • the Declaration of Independence;
  • the constitution of the commonwealth;
  • local history and government;
  • the function and composition of the branches of local, state and federal government;
  • the roles and responsibilities of a citizen in a democracy;
  • the development of skills to access, analyze and evaluate written and digital media as it relates to history and civics;
  • community diversity and historical trends in voter registration and civic participation relative to disenfranchised voter populations;
  • opportunities to identify and debate issues relative to power, economic status and the common good in democracy; and
  • a program relating to the flag of the United States of America including, but not limited to, proper etiquette and the correct use and display of the flag, the importance of participation in the electoral process and the provisions of 4 U.S.C. sections 7 to 9, inclusive, and 36 U.S.C. section 301.

The bill also requires every public school serving 8th grade students and each public high school to provide at least one student-led civics project. Unlike in the Senate bill, however, the compromise language does not make completion of the project a requirement for graduation. The nature of the projects is quite flexible, and it can be class-wide, individual, or small group, but represents an opportunity for students to engage in unique, experiential civics-related learning.

Additionally, under S.2631, the state will provide professional training to teachers and create a “high school voter challenge program,” which would select students to run voter registration drives on their campus. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

In May, BBA President Mark Smith of Laredo & Smith LLP (himself a former high-school teacher) sent a letter to Chair William Galvin of the House Committee on Rules, expressing our support, and after it passed the House, he sent a letter to the Conference Committee urging them to ensure this important legislation was reported to the full Legislature in time for a final vote by July 31. In that letter, President Smith noted:

“The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.”

We are very pleased that the Legislature understood the importance of providing strong civics education all students in the Commonwealth, and a special thanks goes to Education Committee Chairs Senator Sonia Chang Diaz and Representative Alice Peisch for their concerted efforts on this important legislation! The bill is now before the Governor, awaiting his signature.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Committee on Grand Jury Proceedings Submits Final Report on Best Practices

Late last month the SJC announced that the Committee on Grand Jury Proceedings submitted its Final Report to the Justices on proposed best practices with respect to grand jury presentments. As provided in the release, these best practices “are designed to assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution.” When the Committee invited public comment late last year, the BBA Ethics Committee and Criminal Law Section Steering Committee offered comments.

Keep reading to learn more about the Best Practices and submitted comments!

The production of the best practices began in early 2017, when the Court, in Commonwealth v. Grassie announced the appointment of a committee to assist in gaining a better understanding of the current grand jury practices employed by district attorneys and the Attorney General. The Committee on Grand Jury Proceedings was made of up of representatives from the judiciary, the Attorney General’s Office, the Massachusetts District Attorneys Association, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and others with extensive experience in grand jury proceedings. The Court asked the committee “to report on the range of practices employed by the various district attorneys’ offices as well as the Office of the Attorney General with respect to grand jury presentments; the reasons supporting the different practices; the substance of the instructions that grand juries receive from those district attorneys who currently provide them; and any recommended best practices.”

The final report submitted to the Justices, which you can read here, addresses issues such as: what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on less serious offenses than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.

When the Committee solicited comments on the proposed best practices in the spring, it generated some debate in the legal community, and the BBA Ethics Committee and Criminal Law Section Steering Committee discussed them at length. The comments submitted by members of these Committees reflect a collection of views, from various interested BBA members. In general, however, many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices were welcome.

The Ethics Committee overall felt the best practices will be helpful in standardizing approaches to grand jury presentments and simply noted one ambiguity in the use of the phrase “be mindful.” Some Committee members felt the term was overly vague and open to interpretation. The final report seemed responsive to that concern, replacing the phrase “be mindful,” with “recognize.”

Members of the Criminal Law Section Steering Committee also commended the SJC Committee on Grand Jury Proceedings for its significant undertaking, noting that current practices vary greatly across the courts and expressing hope that the proposal would offer helpful guidance and encourage more predictability. A few members raised specific concerns about various provisions, including a suggestion that the definition of “target” in the target warnings be clarified, and that consideration be given to whether certain warnings were adequate for those without counsel. In addition, a member of the Criminal Law Section Steering Committee expressed a concern that the best practice related to the presentation of evidence seemed to suggest there was a presumption that all evidence obtained through a grand jury subpoena be given to the grand jury, a misinterpretation of existing case law. The Final Report makes clear that it is best practice to present the grand jury with all evidence received “unless the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

The Committee’s Chair, Superior Court Judge Robert L Ullmann, noted the best practices benefited from a range of public comment, and the BBA is very grateful, as always, to have had the opportunity to share the thoughts of our members!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Approves Pro Hac Vice Fee Increase

You’ll recall that the BBA Council voted in February of this year to endorse a request from the IOLTA Committee to raise the pro hac vice admission fee. In June, the Supreme Judicial Court released an order amending SJC Rule 3:15, raising this fee. We are grateful to the court for being responsive to the thoughts and concerns of the IOLTA Committee and the BBA.

Keep reading to learn more about the BBA’s history with this request and the SJC’s order.

The BBA Council first took a position on this matter in 2011, when it voted to endorse 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 3:15Pro 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.

This year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and BBA President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. That increase would still leave 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 over the past decade, and unfortunately, projections for IOLTA revenue remain worryingly low. Meanwhile, as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth.

The SJC’s order amending Rule 3:15 increases the pro hac vice admission fee from $301 to $355. Though short of the amount requested, this increase will still offer substantial benefit to civil legal aid funding, and an estimated $30,000 will go to the IOLTA Committee annually. We are thankful the Court continued its long-standing support of access to justice by implementing this increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

The Story of Re-Entry — Bruce Western’s New Book “Homeward: Life in the Year After Prison & The Policy Implications”

Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Imagine living frozen in time for years.  Information is extremely limited.  Your movements are closely restricted.  Your schedule essentially fixed.  Most every part of your life is watched, regulated, and controlled.  This is basically the life of an incarcerated person.  Now imagine that after months, years, and sometimes decades of living like this you’re suddenly released back into the free world with little to no support.  You have to catch up to changes in your community, family, city.  Learn new technology, find a job, find a place to live, and generally figure out what is going on all at once.  Over 40% of recently released persons have reported feeling intense anxiety over something as commonplace as taking public transportation.  Imagine being told to walk in a line every day for a decade and then being thrown into Downtown Crossing during rush hour.

That is just a small peek into the extremely revealing Boston Reentry Study (BRS) – a multiyear effort to follow the lives of about 130 people released from Massachusetts prisons to see how they fared in the year after prison, having served out their sentences, and to possibly understand how they got there in the first place.  The results were detailed in part in the new book Homeward: Life in the Year After Prison, by Bruce Western, a Harvard sociologist and one of the principal investigators of the BRS, whom the BBA was honored to co-host last week, in partnership with Lael Chester and the Columbia University Justice Lab.  Western shared with attendees some of the team’s findings, and helped to lead a discussion on how sound policy could have a hugely positive impact on the lives of the formerly incarcerated as well as society as a whole.

Natashia Tidwell of Hogan Lovells LLP, and co-chair of the BBA’s Civil Rights & Civil Liberties Section, introduces the event.

Explaining that the team’s goal was to “understand in granular detail the transition from prison to community”—a transition that the vast majority of incarcerees will ultimately make—Western described the countless hours of interviews he conducted with study participants to attempt to see commonalities, trends, and potential problem areas to be addressed in policy.  One of the most shocking statistics was that over 40% of participants had seen someone killed, and half had been physically and/or sexually abused.

Here Western raised an interesting point about how society usually likes to draw lines in the sand and make distinctions between victims and perpetrators, but very often it can be the same person, just at different times.  The serious histories of victimizations and trauma found in a majority of study participants is concerning in and of itself, and telling real people’s stories – even people who may have made terrible mistakes or even committed horrible crimes – helps to humanize the conversation and show that you can’t really define someone for what might have been just one thoughtless, careless, or potentially cruel action.  Furthermore, an alarmingly high number of participants had latent or ongoing mental health problems such as depression, anxiety, and PTSD, which were usually made worse while incarcerated due to the lack of proper mental health services available and the general stressors that are constantly present.

Professor Bruce Western, discussing the re-entry research that led to his new book, Homeward.

Western also discussed what a difference stable housing can make in someone’s life.  Naturally, many people return to the same neighborhoods that they lived in before being imprisoned.  When you’re thrown into a world that feels so foreign, it can help to find a small sliver of familiarity.  The problem is that those familiar environments are sometimes what led to imprisonment in the first place, and being around some of the same people, places, activities, and situations can make it very hard to reestablish a life.  At the presentation at the BBA, two of the study’s participants, who had become good friends with Western, discussed this.

John Tavares, a Dorchester resident, and Azan Reid, of Mattapan, both talked about how having more-stable home situations benefited them.  They made sure to surround themselves with positive people who supported them, and avoided those who might bring them into their old habits.  One of their biggest challenges was finding work.  After struggling for a while, Azon ended up starting his own landscaping company, and John became a personal care assistant to a woman with cerebral palsy.  Although they’re both in better places now, they remember the lack of support that they felt when they first got out.  They were suddenly thrust into the world with no idea how to do basic things like get new IDs, and didn’t really have anyone who they felt they could relate to.  That feeling of isolation and worry is one reason they think recidivism rates are so high – when you feel lost and confused it’s easiest to go back to what you know, even if that’s a life of crime.

Sheriff Steve Tompkins, Leslie Walker, Prof. Bruce Western, and study participants Azan Reid and John Tavares, speaking at the BBA, June 20, 2018.

Expanding in part on efforts to combat recidivism, Steve Tompkins, the Suffolk County Sheriff, gave an insider’s look into the criminal justice system by explaining his ultimate vision for corrections around Massachusetts and the country.  He feels we use too many sticks, and not enough carrots.  There’s also just a general lack of opportunities within prisons to access job training, education, and other programming, to not only impress parole boards, but also prepare inmates for life on the outside.  He emphasized that the vast majority of people out there want to find good work, but aren’t able to because they grew up in low-opportunity situations, and got swept up into an unforgiving criminal justice system.

Tompkins decried the wide variety of “linear societal problems that could be improved with more government agency coordination.” Leslie Walker, the legendary and longtime (and outgoing) Executive Director of Prisoners’ Legal Services said we are setting people up for failure—both from childhood, when they don’t get proper services and support, and again, in the criminal justice system, when they’re incentivized to plead guilty, doomed by burdensome requirements, and still don’t get needed support.  Both of them hoped that studies like the BRS are able to better inform policy for legislators and voters alike.

Everyone wants a system that is just. The progress made in Massachusetts’ recent criminal justice reforms are certainly steps in the right direction, but there is always more work to be done.  Using information from studies like the one detailed in Homeward, which is informed by the real lived experiences of men and women who have gone through the criminal justice system, we can better advocate for our fellow Americans to steer people away from the justice system before they enter, properly treat those who do, and then support them by offering a real chance to succeed when they come out, for the good of all of us.

Comments Update: Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules. Indeed, just this month the court released a final version of a rule that incorporated feedback from BBA sections on the proposed version. The Rule – Rule 5(b) of Trial Court Rule XIV: Uniform Rules on Public Access to Court Records on use of the online Attorney Portal – will become effective on July 1, 2018, and can be read in full here.

In October 2017, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records, a Rule with which the BBA already had a long history. In 2016, the BBA established a working group to consider the proposed rule and, along with various sections, submitted substantial comments. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was given only provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,”that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics CommitteeCriminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees were generally satisfied with the substance of the rule itself, but nevertheless highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by stating that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that use of the portal cannot risk the “integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The final version of the terms adopts this recommendation and the revised language now reads: “You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security of the Trial Court’s case management system…”

The Criminal Law Section Steering Committee made a few comments on both the rule itself and the terms. Specifically, the Committee discussed the piece of Rule 5(b) that provides the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted, to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.).

The Committee’s comment related to the terms noted a point of ambiguity in a provision, which stated in the proposed language that one must not leave their computer or work area unsecured while logged in to the portal. Members felt this provision was somewhat vague as drafted (what exactly does it mean to leave a work area “unsecured”?) and redundant, as the Terms provide elsewhere that you are fully responsible for the activity that occurs under your login. In response to this suggestion, the Court removed mention of the “unsecured work area,” leaving it clear that one is fully responsible for all activity that occurs under the login credentials.

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the revised Rule, the language was edited to make this point more evident, and it now makes clear that registered attorneys “shall have access to a portal providing remote access to all nonexempt cases, and a calendar of scheduled events in the cases in which they have entered an appearance” (emphasis added).

In the terms, the Committee thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). The proposed definition described data scraping as “an automated process, or technique, used to extract or collect data from a source, such as a website or applications.” Committee members offered an alternative definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. The new definition in the final version of the terms largely tracks the recommendation and now describes data scraping as “the use of a computer program or other automated process or technique to extract or collect data from the Trial Court’s case management system.”

Finally, the committee members felt the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials. The proposed terms provided that one may be subject to sanctions and referred to the Board of Bar Overseers “if you (or persons you allow to use your login credentials)” use the portal in a way prohibited by the terms. Members thought this was inconsistent with a prior provision which made clear that one is fully responsible for all activity that occurs under one’s login credentials, regardless of whether permission to use was granted. The final version of terms adopts this recommendation and now provides that the consequences for prohibited use apply to attorney use as well as “persons who use your login credentials.”

As always, we are very appreciative of the hard work and expertise offered by the Committee Members and were thrilled that the court adopted many of the suggestions. To learn more, you can read the full comments submitted by the BBA here, and to read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Update: Online Access to Court Records

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Looking Back: The BBA’s History of Supporting LGBTQ+ Rights

 In celebration of Pride Month, and in advance of the Pride Parade this weekend, we wanted to take a moment to trace the BBA’s own long history of supporting LGTBQ+ rights.

To begin, we have to go back nearly 45 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, nearly three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

As you know, the inclusion of public accommodation protections for transgender individuals is at stake on the November ballot, as opponents seek to repeal the law, so be sure to read more about the Freedom for All MA Coalition that’s leading this effort (with the BBA as one of many members), RSVP to this BBA volunteer opportunity, and, most importantly VOTE YES to ensure this law remains on the books!

In addition to being on the forefront of offering antidiscrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

  • In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
  • In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
  • In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, the amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
  • Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, and then-President Julia Huston stated: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a set of bills that would ban the use of “conversion therapy” by licensed professionals on minors. Unfortunately, these important protections did not pass last session, but there is still time this go around. Be sure to visit our new post that explains just why this legislation matters and what you can do to make sure Massachusetts does not miss its chance to join the growing number of states standing up to protect their LGBTQ+ youth in this way.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. We hope you’ll join the BBA in celebrating Pride by recommitting to this fight, and what better way to start than by ensuring transgender antidiscrimination protections remain the law of the land and that Massachusetts LGBTQ+ youth are protected from harmful conversion therapy practices.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association