SJC Considers Shortage of Lawyers to Represent Indigent Criminal Defendants

We’ve written here before about a set of three cases in Hampden and Worcester Counties which highlight the shortage of available attorneys to represent indigent criminal defendants, as the Constitution requires.

The BBA submitted an amicus brief on the issue to the SJC, as we did in 2004— the last time the Court heard a similar case.  We urged them to act decisively to address this constitutional crisis, which was triggered, once again, by underfunding of the Commonwealth’s commitment to the right to counsel enshrined in Gideon v. Wainwright.

On November 7, the SJC held 2+ hours of oral argument on three cases. Although the BBA brief was not cited by name, justices referred to our argument that an increase in the hourly rates offered to private attorneys who handle indigent criminal defense could provide a resolution to the problem. They also brought up our point that public-safety concerns are heightened where, as here, prosecutors seek to hold the defendant on dangerousness grounds.

Much of the discussion centered on the so-called Lavallee protocol, as set forth in that 2004 case. The protocol calls for defendants to be released after 7 days if no attorney can be appointed, and charges to be dismissed, without prejudice, after 45 days. 

Attorneys differed over whether it still provides a workable solution, and over whether the justices should view it as a way to ensure defendants’ rights are honored, or as a way to impose consequences when they are not.

The was no agreement over whether the Lavallee decision applies to the current situation, how such a decision is to be made by the courts, what (if anything) should replace Lavallee, nor whether the SJC can exercise its superintendence authority to increase hourly compensation rates in order to increase the supply of attorneys accepting indigent-defense cases.

Also at issue — though the BBA brief took no position on it — was interpretation of the SJC’s 2017 Brangan ruling, which holds that, in making bail decisions, judges must take into account the defendant’s ability to pay, and, when imposing bail at a level that a defendant likely cannot pay, must explain why there was no other way to guarantee the defendant’s appearance.

You can read our live-tweeting of the oral argument, and you can watch the full video. A decision is expected by March — coincidentally, just as budget discussions at the State House begin to heat up.

-Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Public Charge, DACA at the Supreme Court, and the “Remain in Mexico” Policy

We continue to monitor developments on immigration policy, especially at the federal level, in keeping with our adoption in 2018 of broad immigration principles. Today, we present updates on a number of related fronts.

First, earlier this month, the Department of Homeland Security proposed new regulations that would increase a broad array of fees associated with immigration applications. 

Although some fees would actually see a decrease, the citizenship application fee would rise from $640 to $1,170, for example, and Deferred Action for Childhood Arrivals, or DACA, applications would go from $495 to $765.

Such changes would be counter to our immigration principles; in the report accompanying them, we wrote:

For people seeking an immigration remedy, the individual liberty interest at stake is “grave,” and so the accompanying protections—constitutional as well as statutory—must be potent. Immigrants face barriers to access to the administrative immigration system established by Congress … when applicants for immigration benefits are charged prohibitively high fees. These barriers call into question whether the constitutional rights of Due Process and Equal Protection applicable to all persons, regardless of immigration status, are more illusion than reality.

But they also run afoul of a position we took in 2008, when we endorsed an ABA resolution declaring (in part), “Fee levels for immigration and naturalization benefits [should not be] so burdensome as to deter eligible applicants from applying for such benefits.”

The timetable for implementation of this proposed rule has it going into effect, on an emergency basis, on December 2.

Public charge rule on hold

The BBA has been closely following the developments of the public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join. Most recently, we published an Issue Spot blog post citing a new Migration Policy Institute study that detailed exactly how the proposed policy would affect legal immigrants in the U.S.

The most recent update to this policy is that federal judges in three states – New York, California, and Washington – have issued temporary injunctions to prevent the rule from taking effect on October 15, as was planned. The rule is being challenged in several federal courts and more than a dozen state attorneys general, arguing that it discriminates against low-income immigrants and immigrants of color. One of the major concerns is the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and imposing a huge cost on local and state governments.

The public charge rule goes against our Immigration Principles, which state that: “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance”. The rule not only discriminates against low-income immigrants but also deters all immigrants from accessing public services and fully exercising their rights and freedoms.

DACA Arguments at Supreme Court

This week, the Supreme Court heard arguments on what may be one of the most important cases of the year: the decision whether to uphold the Trump administration’s dissolution of DACA.

Enacted in 2012 by the Obama administration, the DACA program was designed to protect undocumented individuals who were brought to U.S. as children. It allows them to work, pursue an education, and be protected from deportation. In September 2017, President Trump declared that the DACA program was “illegal” and “unconstitutional” and initiated the process of dissolving it. Three federal appeals courts ruled that when an administration revokes a policy on which so many people have relied, the administration must provide a fully supported rationale that outlines why, which it did not do in 2017. The Trump administration appealed to the Supreme Court, and that argument took place on Tuesday.

The Supreme Court’s conservative majority signaled that it may back the Trump administration and allow it to shut down the program, affecting 700,000 young people currently protected by DACA.

We hosted a program on this issue in 2017 and are continuing to keep a close eye on it as new developments arise.

Mexico’s Humanitarian Crisis

On Friday, November 8th, the Boston Bar Association hosted Eunice Rendón to give an update on the impact that the “Remain in Mexico” policy has had on refugees, asylum seekers, and migrants in Mexico. Eunice Rendón is the Executive Director of Agenda Migrante and a researcher at the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology).

Ms. Rendón began her talk by providing an overview of the “Remain in Mexico” Policy. The policy is an agreement between the Mexican government and the U.S. government that asylum seekers going through immigration proceedings must remain in Mexico during the process. Ms. Rendón noted that the six Mexican cities where the migrants must remain are the most dangerous cities in the country, with some of the highest rates of homicide. She stated that it is estimated that there are 50,000 migrants in Mexico, but their whereabouts are unknown by the Mexican government. Ms. Rendón also noted that the Mexican government is feeling the strain of deportees, which has increased to 200,000 a year under the Trump administration. 

The migrants in Mexico are being held in two types of shelters: shelters run by non-profit organizations and official Mexican government shelters. Ms. Rendón believes that both shelters lack the capacity to support the influx of migrants, which has risen from 7,000 a year to 60,000 a year over the past four years. She also noted there is tension between the federal government and local governments on the contribution levels to the shelters. The poor conditions in the shelters have allowed criminal organizations to exploit migrants, by forcibly recruiting them into their organizations, leaving young children especially vulnerable.  Importantly, most migrants are not well informed on the dangers of attempting to cross the U.S. border or the challenges associated with seeking asylum in the U.S. The Mexican government has attempted to deter migrants by posting the National Guard at the southern border, but, according to Ms. Rendón, they are not well-trained in immigration enforcement proceedings and are not doing an adequate job.

Ms. Rendón concluded her talk by stating that Mexico has undergone a transition from being only a point of transit in the migratory process to becoming a reception country. The people of Mexico have become fearful of migrants due to the reverberation of xenophobic language coming from the Trump administration. Migrants are now settling into Mexican communities as they await asylum claims in the U.S. In dealing with the changing face of migration, Mexico does not have the resources to respond.

This event was co-sponsored by the Immigration Law Section Steering Committee and the Boston Bar Foundation’s Policy Research and Innovation Fund.

-Michael Avitzur
Government Relations Director
Boston Bar Association


Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Right-to-Counsel Coalition Gains Support

This year, the BBA joined a broad coalition seeking to enact a right to counsel in eviction cases for indigent tenants and landlords. This position jibes with our past support for a right to counsel, generally, in civil matters involving basic human needs.

In the past month, both The Boston Globe and SJC Chief Justice Ralph Gants have expressed strong support for legislation to achieve the coalition’s goal.

As the Globe put it in their editorial after citing successful efforts along the same lines in a few U.S. cities, “For renters who don’t have the financial means, the right to a court-appointed lawyer would level the playing field and offer them a better chance of success at staying in their homes.”

At his State of the Judiciary speech on October 30 (read more about the event here), the chief justice endorsed the measure, saying, “I know that there are legislative efforts afoot here in Massachusetts to provide legal counsel for all indigent parties in eviction proceedings, not only tenants but also indigent landlords who rely on the timely receipt of rent to make their mortgage payments and avoid foreclosure, and I hope that by next year these efforts may finally come to fruition.”

The coalition will soon be delivering bill language to the Legislature that would make Massachusetts the first state to offer this right to counsel.

-Michael Avitzur
Government Relations Director
Boston Bar Association

State of the Judiciary

Each year at the John Adams Courthouse, the SJC’s Chief Justice, the Trial Court’s Chief Justice and the Court Administrator all present remarks on their priorities for the coming year.

This past October 30, Chief Justice Ralph Gants of the SJC gave his sixth such address, using the occasion to express his support for a right to counsel in eviction cases and discuss plans to develop a “virtual court service center” to assist litigants who need help navigating the court system.

He also demonstrated his continued concern about lawyer well-being with two new measures, following up on this past year’s report by a special committee the Court had appointed. The chief announced the establishment of a new Standing Committee on Lawyer Well-Being, as recommended in the report.

Second, the SJC will be establishing a pilot mentoring program for newly admitted solo and small firm practitioners. He also called on attorneys to honor their responsibility to be civil, while adding that judges should show deference to requests for extensions.

On other issues, Chief Gants said a new court working group will address best practices in dealing with criminal defendants who have substance-abuse and mental-health challenges, and pledged that the District Court and BMC have made necessary changes to handle the increased caseload once new rules on procedural-amount jurisdiction in civil cases go into effect in January.

Trial Court Chief Justice Paula Carey talked about implementation of the 2018 criminal-justice reform law, saying that new funding will expand evidence-based support services, including community corrections, for high-risk/-need defendants, building a comprehensive re-entry pathway.

She also pledged that no court in the nation is more engaged in a systemic effort to improve initiatives on diversity, equity, and inclusion, both in the courts and in the community at large. All Trial Court departments, she said, are committed to education, training and outreach, including engaging in difficult conversations.

Chief Carey also discussed the importance of tackling the impact on the courts of substance abuse and trauma, saying, “Trauma can be difficult to identify but is ever-present and overwhelming for both the individual and the court. What is often lost is the trauma experienced by employees of the Trial Court. [It is] imperative that we have resources available for court users, judges and staff.”

Finally, Trial Court Administrator Jon Williams talked about the newly-filed bond bill that promises to significantly upgrade the Trial Court’s information-technology capacity.

“We need major capital investment to transform the role of technology in the [courts],” he told the audience. “Working with our legislative partners, an IT Bond Bill was recently filed to meet the wide range of technology needs for the [judiciary to] transition to…eCourts and cybersecurity.”

-Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Appoints Kate Cook to Corrections Spending Commission

This coming year, the State Legislature is planning to take a serious look at corrections spending and evaluate the distribution of funds across the Department of Correction—which administers the state’s prison system—and the 14 sheriff’s departments—which operate the jails and houses of correction.

The recently-enacted state budget for the current 2020 fiscal year establishes a special commission to conduct a comprehensive study comparing existing funding levels and expenses at each state prison and house of correction and providing a recommendation for an appropriate level or allocation of funding. The budget language, in Outside Section 101, designates a seat for a BBA representative, and we are pleased to have appointed former Civil Rights and Civil Liberties Section Steering Committee Co-Chair and member of the Criminal Justice Reform Working Group, Kate Cook.

Kate has extensive legal, policy and budget experience, and is a partner at Sugarman Rogers where she chairs the Government Law practice. In the past, she served as chief legal counsel to Governor Deval Patrick, advising the Governor and executive branch on legal, regulatory, and policy matters. She also has experience as the General Counsel to the Senate Ways and Means Committee, and as an Assistant Corporation Counsel to the City of Boston.

Kate has been active in the BBA’s Civil Rights and Civil Liberties Section for a number of years. She has also served on our Annual Meeting Steering Committee, the Law Day Steering Committee, the Beacon Award Steering Committee, and the Joint Planning Committee. From 2012 to 2015, she was the Governor’s appointee to the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts.

The Corrections Spending Commission will pursue:

  • a review of staffing ratios and employee costs in each state prison and house of correction;
  • an examination of potential ways to increase efficiencies and reduce fixed costs in state prisons and houses of correction;
  • an analysis of the amount spent by the Department of Correction and by each sheriff’s department on mental health and substance use disorder services and the appropriate levels of funding necessary to meet the service needs of incarcerated people;
  • a review of all discretionary programming offered in state prisons and houses of correction, including an analysis of geographical disparities in discretionary programming;
  • an analysis of the 2018 criminal-justice reform law, its impacts on state prisons and houses of correction and best practices to implement its requirements;
  • a review of the physical assets, infrastructure, buildings and communications equipment owned by each sheriff’s department and state prison; and
  • a review of the funding sources for the Department of Correction and each sheriff’s department, including appropriations from the Commonwealth, commissary charges, prison industries, trust fund accounts, intermunicipal agreements, other inmate fees and expenses and other sources of revenue.

The commission is tasked with submitting a written report of its findings no later than September 1, 2020.

The BBA has had a long-standing commitment to promoting a fair and equitable criminal justice system. In October 2017, the Criminal Justice Reform working group that Kate was a part of published a report titled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System”. That report outlines a set of recommendations that touch on bail, sentencing, recidivism reduction, and criminal record laws—many of which were adopted the following year, as part of a broad criminal-justice reform package.

A report published in 1991 titled “The Crisis in Corrections and Sentencing in Massachusetts,” created by the Task Force on Justice (a joint project of the BBA and the Crime and Justice Foundation), outlined our concern with overcrowding in corrections facilities and the growing issue of mass incarceration.

We are looking forward to learning more about state spending and financing in the correctional system today, and we hope the commission’s final report will help advance our efforts to promote a fair and equitable criminal justice system.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Movement in Congress on Bankruptcy Issues

We have an update from Congress on a couple of bankruptcy-related issues on which the BBA has a formal position.

First, two members of Congress have introduced a bipartisan bankruptcy-venue reform bill. While H.R. 4421 is new to the current 116th session of Congress, it’s substantially similar to legislation that the BBA has previously endorsed.

The proposed law eliminates the place of incorporation in favor of filing where the debtor’s principal place of business or principal assets are located, thus making it more likely that local bankruptcy cases will be decided at home.

Current law provides a loophole that allows troubled companies to flee their home states and seek bankruptcy protection in remote jurisdictions, disenfranchising creditors, employees, pensioners, and other interested local parties.

Bertucci’s, Filene’s, City Sports, Friendly’s, and the Boston Herald are just a few examples of Massachusetts-based firms that have filed in Bankruptcy Court elsewhere since 2009. H.R. 4421 would put a stop to this forum-shopping — a practice that results in the vast majority of major bankruptcies being filed in either Delaware or the Southern District of New York, creating a hardship for local stakeholders.

This is one of those instances when you may be able to help advance the issue: The sponsors of H.R. 4421 (Representatives Zoe Lofgren of California and Jim Sensenbrenner of Wisconsin) are interested in gathering additional support, so if you have a moment to contact your own Representative in Congress, please give them a call or send an e-mail, urging them to sign on.

The second issue has to do with the treatment of Veterans’ Administration benefits to individuals in bankruptcy. You may recall that, this past June, the BBA endorsed legislation to protect those veterans by closing a loophole that excludes Social Security disability benefits, but not veterans’ disability benefits, from the calculation of disposable income when a debtor files for bankruptcy. 

The HAVEN Act was introduced in Congress to rectify this imbalance by excluding veterans’ disability benefits from that calculation of income, and then-President Jon Albano sent a letter to the Massachusetts Congressional delegation, expressing the BBA’s support of it.

Since then, the measure passed both the House and Senate by voice vote and was signed into law.

We thank our own Bankruptcy Section for their work in identifying, researching, and presenting these issues to the BBA Council for their consideration and ultimate endorsement.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief In Support of Just Compensation for Appointed Criminal-Defense Counsel

Citing an on-going crisis in the Commonwealth’s criminal courts, the BBA last week filed an amicus brief urging the SJC to take decisive action to address a shortage of attorneys available to represent indigent criminal defendants, as is constitutionally required.

Submitted in the case of Freddie Carrasquillo v. Hampden County District Courts (SJC-12777), the BBA’s brief traces the long history of underfunding of such defense work—now provided through the Committee for Public Counsel Services (CPCS), often by appointing private bar advocates.

That history includes the so-called Lavallee protocol, instituted by the Supreme Judicial Court (SJC) as part of a 2004 case by that name and once again in effect today. Lavallee requires the Commonwealth to release from pretrial detention all indigent defendants who do not receive a lawyer within seven days, and the courts to dismiss without prejudice the cases of those indigent defendants who do not receive a lawyer within 45 days.

The brief, drafted by two attorneys from Foley Hoag LLP, Amicus Committee Co-Chair Neil Austin and Stephen Stich, and by former Amicus Committee Co-Chair Professor David Siegel of New England Law | Boston, argues that, 15 years later, a shortage of lawyers for indigent criminal defendants, in Hampden County and elsewhere, continues to be a significant problem, and that the emergency Lavallee protocol cannot offer a permanent cure to “the chronic problem of an underfunded criminal justice system.”

Although hourly rates for bar advocates have risen since Lavallee, the BBA brief demonstrates that the increases haven’t kept up with inflation, nor have they amounted to nearly enough for many lawyers to afford to work as bar advocates.

The Carrasquillo case arises from a situation in which the defendant appeared without counsel. The lower court addressed the shortage there by ordering CPCS to provide counsel willing to accept appointment in criminal matters—an order which CPCS then sought to vacate.

The Court there is squarely focused on the Lavallee questions, with the Single Justice having filed an interim order that imposed detailed protocols in Hampden County, in keeping with that earlier ruling. Single Justice Budd then reserved and reported the matter to the full court and asked the parties to submit briefs on possible long-term solutions to the crisis, while keeping in place her earlier order.

The SJC posed the following question in soliciting amicus briefs:

To address the shortage of counsel available in Hampden County to represent indigent criminal defendants, whether the protocol set forth in Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 118 (2004), would provide an appropriate remedy; if not, what other or additional remedies are available.

The BBA uses the opportunity to strongly urge the Legislature, in its brief, to “act promptly and raise bar advocates’ hourly rates to a competitive level” but goes on to recommend that the SJC consider “mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates.” This step represents a continuation of the BBA’s advocacy on the right to counsel for indigent defendants.

“For decades, we have supported appropriate compensation for CPCS attorneys and bar advocates in order to ensure due process and the fair and efficient administration of justice,” said BBA President Christine M. Netski of Sugarman Rogers, “and an effective response to this persistent crisis in our justice system is long overdue.”

The brief cites the detrimental effect of insufficient pay on lawyers’ capacities and well-being. It also makes the argument that systematic underfunding for indigent defense threatens public safety—especially in those instances in which prosecutors seek to have a defendant held specifically on the grounds of dangerousness.

“The BBA argued in our 2004 amicus brief in Lavallee that the justice system cannot work fairly unless defense counsel are paid fairly,” Neil Austin said. “Unfortunately, little has changed, and therefore we must again call upon the Court to act in the interest of justice.”

That 2004 brief addressed the evolution of indigent legal defense programs in Massachusetts and the chronic lack of funding suffered at each stage of their development. Noting at that time that sufficient funds “are not being provided today,” the BBA urged the SJC “to insist upon what may be a harsh reality: that the systems will not work fairly—especially for the defendants—unless defense counsel are paid adequate compensation.”

The earlier brief was drafted by three attorneys then at Choate, Hall & Stewart (today, Choate), Jack Cinquegrana, Michelle Dineen Jerrett, and Terrence Schwab.

On July 28, 2004, the SJC found that the defendants in these cases were being deprived of their right to counsel under the Massachusetts Declaration of Rights and urged all three branches of government to work together to fashion a remedy. Days later, the Legislature passed a bill to increase hourly rates for certain types of cases through a $16.3 million supplement to the Fiscal Year 2005 budget and create a commission to study indigent criminal defendant representation. The final report recommended further increases over a multi-year period. (For a more comprehensive history of CPCS and bar advocate compensation, see here).

However, those recommended increases were never fully implemented, and the problem of chronic underfunding has only worsened. The BBA’s new brief updates the data to highlight the economic challenges facing bar advocates. 

The Carrasquillo case, as well as two related consolidated cases from Worcester County, will be argued before the SJC on November 7, with a ruling expected by March. We encourage you to join us by watching that live from the Brooke Courthouse, starting at 9am.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Civil Asset Forfeiture Commission Convenes, with BBA at the Table

The State Legislature has started taking a serious look at state policies and practices around the issue of civil asset forfeiture, with a newly-established commission designed to gather data on the practice statewide and then submit recommendations for potential reforms.  The recently-enacted state budget for the current fiscal year creates the 21-member commission in Section 90, with a tight—and, shall we say, optimistic—deadline of December 31 to present the Legislature with “a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect”.

This is an issue we’ve been keeping an eye on, as it attracted attention in the media (including an episode of John Oliver’s TV show), from think tanks of various stripes (one of which gave Massachusetts an F grade for its current forfeiture laws), and from legislators sponsoring reform-minded bills.  The concerns mostly center on the low standard of proof in Massachusetts as compared with other states, limited reporting requirements, and incentives that arguably encourage its use and perhaps skew law-enforcement priorities.  We were pleased that the budget language carves out a seat for the BBA on the new panel, and former President Carol Starkey has been appointed to represent us there.

The commission met for the first time earlier this month, with four further meetings scheduled for the rest of this year ahead of the deadline.  Perhaps not coincidentally, the Judiciary Committee—whose co-chairs, Sen. Jamie Eldridge and Rep. Claire Cronin also head the commission—held a hearing the following day with an agenda that included five bills dealing with civil asset forfeiture.

The commission is tasked with:

  • an evaluation of the standard of proof required for law enforcement to establish that property seized is related to a crime, as compared to the standard imposed in other states;
  • a review of current documentation and reporting obligations for law enforcement, including the extent to which law enforcement records whether the property’s owner was charged with or convicted of a crime, and any recommendations for enhanced or additional reporting requirements;
  • an analysis of the scope of civil asset forfeiture, including an estimate of the total value of assets seized annually, the average value of assets seized in a case and a breakdown by percentage of the underlying offenses giving rise to the forfeiture;
  • an examination of how civil asset forfeiture proceeds are allocated and spent;
  • an evaluation of the process by which property owners may challenge a seizure, including the percentage of seizure proceedings challenged annually, the percentage of successful challenges and the average cost of bringing a challenge;
  • an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws; and
  • a review of best practices undertaken in other states.

It bears mentioning, as well, that Section 101 of the state budget creates another commission on which the BBA has a seat, albeit one that has a longer timeline (reporting deadline: September 1, 2020) and hasn’t yet gotten up and running.  This one (to which a BBA representative has not yet been appointed) will, in the words of the enacting language, “conduct a comprehensive study to evaluate and make recommendations regarding the appropriate level of funding for the department of correction and each sheriff’s department.” 

We will use this space to keep you updated as each of these commissions progress.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Testifies on Trusts & Estates Legislation

We are well into the season of legislative public hearings now, and earlier this month, the Judiciary Committee heard bills related to probate and family law—including two that are of great interest to our Trusts & Estates section.

You may have read previously in this space about each of the bills: The Uniform Trust Decanting Act (UTDA), and the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).  Each of them was developed by the Uniform Law Commission and then tweaked, mostly to conform with existing Massachusetts statutes, by an independent standing committee of T&E practitioners

Four members of that committee—Marc Bloostein (Ropes & Gray), Renat Lumpau (Choate), Eric Hayes (Goodwin) and Mark Leahy (Burke, Whittum & Leahy LLC)—were able to testify at the hearing, collectively representing the BBA, MBA, and Massachusetts Bankers Association, all of whom are supporting both bills, as well as the standing committee itself.  The UTDA bill (S. 896) was filed by Sen. Cynthia Stone Creem, and companion RUFADAA bills (H. 3368 and S. 936) were filed in the House and Senate by Rep. Jay Livingstone and Sen. Barry Finegold, respectively.

To summarize the case for the two bills:

  • UTDA:
    • Decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust, is a form of trust modification that’s available to fiduciaries now in Massachusetts.  But while it can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.
    • The UTDA was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting, and if it’s adopted here, Massachusetts would join the majority of states with some type of statutory decanting in place.  Massachusetts practitioners would remain free to continue to decant trusts under common law, if that makes the best sense for a client or situation, but they would also have an alternative and clear guidance concerning how to decant properly in accordance with the statute.
    • This uniform language was developed in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, e-mails, on-line banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies—if they have any policies on the matter at all. RUFADAA would add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 43 other states have adopted RUFADAA in some form.
    • The bill establishes a hierarchy to determine the preferences of the user:
      • First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.
      • Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access. 
      • Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.
    • The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

These bills help demonstrate the importance of the BBA’s sections to our development of policy positions: The legislation would not enjoy the BBA endorsement had the Trusts & Estates section not flagged these two issues for us.  We rely heavily on our substantive-law sections to spot issues for us within their practice areas, especially those that our section members feel the BBA ought to speak out on as an organization.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: the Flores Settlement, the Public Charge Rule, and More

Last September, the BBA released Immigration Principles that have guided our response to various immigration-related issues since. Every few months, we like to offer updates on significant immigration developments and events to be reminded of these principles and their importance, as well as the BBA’s long-standing support of measures to uphold due process and equal protection rights and access to counsel for immigrants.

In the past few months, there have been four significant developments in immigration policy that we would like to direct your attention to.

The Flores Settlement

In October 2018, as part of our first Immigration Update following the publication of the Immigration Principles, we published an Issue Spot on the Department of Homeland Security’s proposed regulations related to the Flores Settlement Agreement (FSA). The following month, we filed a letter, directed at Debbie Seguin, the Assistant Director of the Office of Policy at U.S. Immigration and Customs Enforcement, opposing this effort to undermine the protections asserted by the FSA.  Earlier this summer, the Trump Administration announced a proposal to terminate the FSA, a move that would significantly reduce protection of detained migrant families traveling with minors.

The FSA was established in 1997 as the outcome of the Flores v. Reno case. This court agreement requires the government to release children from immigration detention, without unnecessary delay, to their parents. The settlement also required immigration officials to provide detained minors a certain quality of life, including things such as good drinking water and medical assistance in emergencies. (A Congressional Research Service report details the conditions and protections of minors required by the settlement.)

The settlement was reached after Jenny Lisette Flores, a 15-year-old girl from El Salvador, was arrested by the former government agency Immigration and Naturalization Service (INS) while trying to cross the US-Mexico border and was taken into custody separate from the family member she was traveling with. The ACLU filed a class-action suit on behalf of Jenny and other minors, eventually leading to the Flores agreement.

The Trump administration has made repeated attempts to change the Flores settlement agreement, arguing that it prevents the government’s efforts to deter undocumented immigrants from entering the country. The administration claims that this new rule will keep families together by reducing the number of undocumented children attempting to travel into the United States. However, attorneys for migrant children and advocates for immigrant rights are arguing—and the BBA shares this concern—that this effort will compromise the health and safety of detained minor children by allowing the government to detain them as long as it wishes.

A coalition of 20 states led by California and Massachusetts are filing a lawsuit against the Trump administration in the hopes of blocking the implementation of the proposed regulation and protecting the FSA. Our November 2018 letter, issued by then-BBA President Jon Albano, argues that failing to fulfill the purpose of the FSA “raises serious due process concerns, is fiscally irresponsible, and will endanger the well-being and rights of immigrant children”. We have for years been speaking in opposition to practices that threaten the rights and well-being of immigrants and in support of measures that ensure the just, humane, and fair treatment of all individuals within our borders, but now those positions have been enshrined in our Immigration Principles.

The Public Charge Rule

Earlier this month, the Trump administration announced a proposed change to a regulation known as the “public charge” rule. This regulation denies green cards to immigrants deemed likely to be reliant on various forms of social welfare.

The BBA submitted comments in opposition to the proposed public charge rule in December 2018. In the letter, then-President Jon Albano cited our Immigration Principles and argued that the new public charge rule would “create significant barriers to accessing justice, have harmful impacts on immigrants, their families, and our communities and economies, and may be applied unfairly and inconsistently”. Further, Mr. Albano noted that in the past, public charge determinations have been used to justify exclusion of groups such as low-income Irish immigrants and Jews fleeing Nazi persecution, and how dangerously close to repeating these troubling moments in history we are. The BBA urged others to join them in opposing the proposed public charge rule.

Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”. Starting in October, the government’s decision to grant green cards will be based on an aggressive wealth test that will deny legal residence to hundreds of thousands of immigrants. The new rule appears designed to reshape, reform, and significantly shrink the legal immigrant community. A study conducted by the Migration Policy Institute when the proposed regulations were first announced in June 2018 found that:

  • Nearly half of the U.S. noncitizen population could be at risk of a public-charge determination – up from a current 3 percent.
  • The rule will discourage millions of immigrants from accessing health, nutrition, and social services.
  • The effects of this rule are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may disenroll them from services for fear of immigration consequences.

A new Migration Policy Institute study from last month found that of the legally present noncitizens in families with annual incomes below 250 percent of the federal poverty line, the vast majority are from Mexico and Central America, Africa, and Asia. In fact, 72% of legal noncitizens from the Caribbean, 71% of those from Mexico and Central America, and 69% of those from Africa are in families with annual incomes below 250 percent of the federal poverty line. The intention behind this rule is said to be that new legal residents “carry their own weight”, without acknowledging that it will specifically target poor people from Latin America, Africa, and parts of Asia. In other words, this rule will directly impact poor people of color, discouraging them from seeking out public assistance and putting their housing situation, health, and economic stability at risk.

This isn’t the first time that Trump has targeted immigrants coming from specific countries or attempted to curtail legal immigration into the United States, and follows a set of troubling immigration policies proposed by the current administration.

Halt of Medical Deferred Action Program

Earlier this summer, the Trump administration announced that it was ending the program that allowed immigrants to avoid deportation while they or their relatives were undergoing lifesaving medical treatment. This program, called “deferred action”, ensured at least 1,000 qualified people every year would not be deported until their medical treatment was over. The BBA tweeted that we were “deeply concerned” and “dismayed” by this change in policy and referenced one of our Immigration Principles, that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status” to explain our opposition to it.

USCIS began informing families that it would stop considering requests for deferred action and that the families must leave the country within 33 days. In a statement to the Boston Globe, Congressional Representative Ayanna Pressley said that, “deportation from the United States with this type of medical condition is a death sentence”.

Since the announcement of this rule change, public outcry has led the Trump administration to reinstate the program. This followed a coordinated effort by 100 members of Congress who signed a letter denouncing the suspension of the program as well as public uproar as migrants affected by this change began to come forward. The American Immigration Lawyers Association welcomed the decision and thanked the impacted clients for bringing the “cruelty of this rescission to light through their bravery and courage sharing their stories with the agency, the media, and Congress”.

Halt of Asylum Application Processing in Boston and Newark

Boston and Newark are currently the only two cities that process asylum claims for New England residents, and that may be coming to an end. The Trump Administration is halting the processing of most New England asylum cases, leaving behind more than 40,000 pending cases, by redirecting most of the officers from the Boston and Newark offices to the southern border.

USCIS Director Ken Cuccinelli tweeted that the claim that Boston and Newark will stop processing asylum claims is false, and that it is simply a slight shift of staff to help with the “credible fear” workload piling up at the southern border. However, immigration attorneys and asylum officers are saying that they received an email from USCIS last week saying that it would no longer schedule any new asylum interviews in Boston and only a small number in Newark. Senator Elizabeth Warren said it is part of the Trump Administration’s “shameful campaign to prevent people fleeing violence from finding refuge in the US.”

We will continue to monitor these situations as new developments unfold.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association