State Budget Update: Conference Committee

The fate of the Fiscal Year 2020 Massachusetts state budget, and with it several BBA priorities, is now in the hands of the six legislators who make up the House/Senate Conference Committee:

(If you are represented by any of the above, please contact them now, to express your support for the provisions below. Confirm your elected officials here.  Contact information is found through the individual links above.)

We regularly use this space to keep you updated on our priorities and our advocacy.  As we enter the final stages of the budget process—with a conference-committee compromise budget expected within weeks, at which point the plan would be sent to the Governor—the BBA has sent a letter to the conferees, outlining our priorities in four key areas:

Funding for civil legal aid (line-item 0321-1600)

This funding, through the Massachusetts Legal Assistance Corporation (MLAC) has long been a top BBA priority. We work with MLAC and the Massachusetts Bar Association, as partners in the Equal Justice Coalition, in our advocacy—the most-visible manifestation of which each year is the Walk to the Hill for Civil Legal Aid.

Since the 2014 release of Investing in Justice, the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we have had an even stronger basis for our case on behalf of MLAC’s line-item, pointing to our surveys showing that nearly two-thirds of qualified applicants must be turned away by providers for lack of resources, and to independent research demonstrating the positive return on the Commonwealth’s investment in the area.

In the intervening five years, the Legislature has been very generous in increasing MLAC funding, yet the demand continues to grow apace.  This year, the BBA supports the Senate’s appropriation of $24 million, which would represent a $3 million increase from the current FY19 figure.

Funding for the Trial Court (multiple line-items)

In spite of steady, generous increases in their appropriations from the Legislature in the years since the Great Recession, the Trial Court remains underfunded. Over the last few years, it has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less. As a result of this work, they have been able to continue the efficient and effective operation of the courts, even with a 17% reduction in staffing between FY09 and FY18.

It is essential that our courts are adequately funded, and we have urged the conferees to adopt the higher appropriation for each line-item.

We were strong supporters of statewide expansion of the Housing Court, and, consistent with that position, we asked the committee to continue to fully fund the implementation of the expansion.

Funding for re-entry services to reduce recidivism (line-item 0339-1011)

While we remain grateful to the Legislature for last session’s sweeping reforms aimed at making our criminal-justice system more fair and effective, Massachusetts continues to trail other states in funding re-entry programs that help prevent individuals from getting trapped in cycles of recidivism. In the our 2017 criminal justice reform report, No Time to Wait, we highlighted the “lack of program availability” as one of the three reasons that so many are denied access to these vital resources and urged the Commonwealth to “ensure adequate funding and accountability for anti-recidivism reforms.”

Each year, thousands of Massachusetts residents are released from county jails and state prisons, many with little or no resources to help in securing essential needs like employment and housing.  Without any support, the likelihood of returning to illegal practices, and re-entering the justice system, greatly increases.  Community-based residential re-entry services, like those that would be funded through this line-item, offer safe housing, workforce development, and case management, fostering connections and stability for those re-entering society.

For these reasons, the BBA supports the House’s appropriation of $4.5 million.

Funding for Committee for Public Counsel Services (CPCS) (line-items 0321-1500 and 0321-1510)

CPCS plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel. Adequate funding helps CPCS salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services.

We have asked that the conference committee adopt the higher level of funding for CPCS operations and for its private-counsel program.

We also requested that the final budget incorporate the Senate’s budget language allowing for an expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances. 

Currently, the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing.

Adequate funding, in conjunction with expanded capacity for bar advocates, or private attorneys who defend indigent clients, would assist CPCS in finding attorneys willing to take on these difficult cases and protect the constitutional rights of these parents and children.

We expect to know soon what action the conference committee proposes on these items, and we anticipate one final push to urge Governor Charlie Baker to act on them, once the budget arrives on his desk.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Endorses HAVEN Act to Protect Veterans’ Disability Benefits

The Boston Bar Association has endorsed legislation to protect recipients of veterans’ disability benefits who are facing bankruptcy proceedings. 

The bill, pending in Congress, is known as the Honoring American Veterans in Extreme Need Act of 2019, or HAVEN Act, and would address an inexplicable loophole in current bankruptcy law that excludes Social Security disability benefits, but not veterans’ disability benefits, from the calculation of disposable income when a debtor files for bankruptcy. Because of this disparate treatment, disability benefits received through the Department of Veterans Affairs (VA) and the Department of Defense (DoD) may be accessible by creditors, unlike similar benefits that happen to be administered through the Social Security Administration. The HAVEN Act would rectify this imbalance by excluding veterans’ disability benefits from that calculation of income.

We have sent a letter from BBA President Jon Albano to the Massachusetts Congressional delegation, asking for their support for the HAVEN Act, in order to ensure equal treatment of disabled veterans in bankruptcy proceedings.  As the letter states:

It is unclear why this oversight occurred when significant Bankruptcy Code reforms were last enacted in 2005. Prior to that, bankruptcy courts had discretion when deciding whether to count disability-related income from the VA/DoD as “current monthly income”.

The Bankruptcy Code, as currently written, provides that if a debtor seeks protection under a Chapter 7 liquidation, that debtor must pass a “means test”, such that if the debtor earns too much “monthly income” in comparison with expenses, they cannot proceed via Chapter 7 but must instead use a more-protracted Chapter 13 proceeding, which involves pledging a percentage of future income, usually for three or five years, to pay creditors. 

Because of the disparate treatment of disability benefits under the current means test, more disabled veterans will be pushed into Chapter 13, and their future veterans’ disability benefits will be applied to pay creditors. Recipients of Social Security disability payments, however, will not suffer the same consequences.

The proposed amendment would rectify this imbalance by excluding veterans’ disability benefits from that calculation of monthly income.

We thank the BBA’s Bankruptcy Law section and our Active Duty Military & Veterans Forum for their help with this matter and we hope to update you when the HAVEN Act becomes law.  In the meantime, if you’d like to add your voice, you can contact Sen. Elizabeth Warren, Sen. Ed Markey, and your member of Congress, to ask for their support.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins Coalition on Right to Counsel in Eviction Cases

The Boston Bar Association has joined the Massachusetts Right to Counsel Coalition, proclaiming its support for the goal of ensuring legal representation to low-income tenants, post-foreclosure occupants, and landlords.  The BBA will work alongside the Coalition to promote state legislation that will achieve this goal.

This stance is in keeping not only with the BBA’s mission to advance access to justice but also with past BBA positions on expansion of the right to counsel to include civil matters where basic human needs are at stake—including, to quote from a 2006 ABA resolution endorsed by the BBA, “those involving shelter, sustenance, safety, health or child custody.”  All of this is in service to fulfilling the promise of Gideon v. Wainwright through what is known as “civil Gideon”.

BBA History

The following year, the BBA appointed a Task Force on the Civil Right to Counsel, chaired by past BBA President Mary Ryan and Jayne Tyrrell (director of the Massachusetts IOLTA Committee).  The Task Force’s report, Gideon’s New Trumpet, sought to further advance the debate over civil right to counsel by proposing concrete steps that could be taken toward its implementation, across a range of issue areas, through nine separate pilot projects—all focused on civil proceedings involving a basic need or right, where nothing short of representation by counsel will preserve that right.

Among these pilot projects, the report included a plan for eviction cases, based on its finding that:

The need for assistance in cases involving eviction is great. … In Massachusetts, as elsewhere around the country, most tenants and some landlords appear without counsel.  With no right to counsel established in the eviction area, indigent tenants obtain full representation only when legal services offices or a pro bono attorney are able to take their case, a relatively rare occurrence because housing cases are high on the list of unmet legal needs. Tenants who are represented are much more likely to obtain a better result, whether it be maintaining possession of the premises, reaching a favorable settlement or winning at trial.

The Task Force’s recommendation was that the right to counsel for tenants under threat of eviction attach in certain specified cases (involving mental disability or criminal conduct) or under judicial discretion, and that it extend as well to landlords in limited instances (owner-occupied dwellings, for example). 

Following the release of the report, there was considerable public interest in the recommendations, particularly the concept that judicious use of legal aid could prevent homelessness and minimize the impact of evictions.  The Boston Bar Foundation, the Boston Foundation and the Massachusetts Bar Foundation funded two pilots in Quincy and the Northeast Housing Court which demonstrated the significant impact of having counsel.  For example, in Quincy District Court, two-thirds of those represented retained possession, compared to one-third of those in the control group (no representation).  Two additional pilots in Worcester and MetroWest were funded by a grant from the Attorney General’s HomeCorps program, with similar results.

[1] See BBA Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention: A Report on the BBA Civil Right to Counsel Housing Pilots, at 5  (March 2012). 

Whether by the Legislature or the courts, the right to counsel has been recognized in Massachusetts in some civil cases, including care and protection cases, child guardianship cases, children requiring assistance, mental-health commitments and waiver of consent to adoption.  In two related cases, in 2014 and 2015, the BBA signed onto amicus briefs supporting an expansion of the right to counsel in guardianship cases, to include counsel for guardians whose parental rights are at stake.

And of course the BBA has long provided pro-bono attorneys for both landlords and tenants at Lawyer for the Day sessions in the Housing Court. 

The Proposal

In recent years, state legislation has been proposed to promote housing stability by providing a right to counsel in eviction cases, modeled on efforts undertaken in major cities around the nation.

The Massachusetts Law Reform Institute (MLRI)—which previously led a successful coalition (in which the BBA took part) to expand the Housing Court to statewide jurisdiction—has turned its attention to this issue and is building a coalition in support of a newly-drafted framework for legislation to enact a right to counsel for indigent parties in evictions.  The coalition’s detailed guidelines build on the best elements of two different bills filed on this issue in the current 2019-20 legislative session.

More than 40,000 households in Massachusetts were served with eviction papers in 2018, and 92% of these tenants lacked legal representation.  Adoption of a right to counsel in these cases will ensure that low-income people have access to resources and assistance to prevent illegal or unnecessary evictions; reduce homelessness, trauma, and family displacement; allow tenants to avoid the stigma of a public court record; and stabilize individual housing as well as communities.  Although 70% of landlords have counsel, the proposal would extend the right to counsel in eviction cases to cover certain indigent landlords, as endorsed by the BBA (see above). 

In summary, the plan includes the following elements:

  • A broad definition of eligibility, to include:
    • tenants, former homeowners facing eviction after foreclosure, and owner-occupants of two-family homes seeking possession where their own and only home may be at stake
    • income-eligibility at 200% of poverty-level or less.
  • Attachment of the right to counsel when a notice to quit is received—or if no notice to quit is provided, upon service of an eviction complaint.
    • Covers summary process and similar proceedings, including formal public- housing grievance hearings requested by tenants facing an eviction and voucher-terminations hearings.
  • A continuum of legal assistance and housing-stability support should be provided by a designated agency with collaborating community partners, to include:
    • Community outreach to educate people about legal rights and assistance
    • At the notice to quit stage, assessment to screen for housing-stability resources, mediation and legal support as needed.
    • At the administrative hearing stage, assessment to screen for housing stability resources and a trained legal advocate.
    • At the eviction complaint stage, full representation by a legal advocate.
  • A requirement that a landlord inform the occupant of the right to counsel, with protections and penalties in place for failure to do so.
    • The courts should develop procedures to inform litigants about the right to counsel and provide a written waiver for eligible parties that they are knowingly and voluntarily waiving this right.
  • The coalition seeks to create a Civil Justice Committee with independent authority that would be based in the Executive Office of Housing and Economic Development, to develop, implement, monitor, and evaluate a program to implement the right to counsel.
  • The Committee would be tasked with developing, within one year, a plan for implementation.
    • It would be composed of 17 members, including gubernatorial and legislative appointees, three court representatives, two CPCS members, and various other stakeholders, including three MLAC seats and one for the Volunteer Lawyers Project.
    • Its goal would be to designate existing regional entities with legal expertise in landlord/tenant law that will establish collaborations with existing non-profits organizations to achieve effective tenant education, housing stability, and homelessness prevention.

The legislation would not specify how the right is to be funded, but one of the coalition’s organizing principles is that the right must be funded with new money and not by simply reallocating existing legal-assistance and housing-stabilization resources.

Other coalition principles include:

  • Pre-court eviction help, pro-active education and outreach, and housing stabilization are needed to prevent tenants from losing subsidized housing, and to save landlords, tenants, and courts time and money and better facilitate the resolution of cases.
  • Development of an implementation plan must provide a process to allow for input from all stakeholders on the multitude of issues to consider.
  • Implementation must build upon the work of existing organizations with a proven track record of effectiveness in the areas of landlord/tenant legal assistance, homelessness prevention, and housing stabilization. 
  • Collaboration is needed among legal services, social services, community organizers, municipalities, courts, educational institutions, and other organizations to create a continuum of impactful assistance. 
  • Oversight and assessment of the program should be designed in a way to insure measurable outcomes, data collection, and public reporting.

A legislative hearing on the issue is expected in the summer or fall, and the BBA will work alongside our coalition partners—including law firms, legal-services providers, municipalities, and community groups—to advocate for this plan’s enactment.

—Michael Avitzur
Government Relations Director
Boston Bar Association

SJC Hears Arguments on Forensic-Testing Statute

You may recall that we used this space last month to cover a new amicus brief filed at the Supreme Judicial Court (SJC) by the BBA in the case of Commonwealth v. Johnson, arguing that an individual who maintains his innocence should be allowed to seek forensic testing to help prove his claim of innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

The law at issue in this case—known as Chapter 278A—originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment, the defendant completed his Massachusetts sentence and is not on parole or probation. But the BBA’s brief argues, citing analogous recent SJC rulings, that his liberty is otherwise restrained where his registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP , states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, and that if the SJC, the state’s highest court, were to rule against Johnson on that ground, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, against the purpose and spirit of the statute..

The SJC held oral argument in the case on May 9, and from the start, the justices were interested in the question of what the Legislature could have meant in choosing the “otherwise restrained” language, putting that to counsel for both sides.  It didn’t take long for them to zero in on the arguments in the BBA’s brief, which they cited repeatedly from the bench.

But the BBA mentions didn’t stop there.  The justices had clearly done their homework, as several them drilled down into the BBA task-force report on wrongful convictions and even a Boston Bar Journal (BBJ) article on Chapter 278A—both of which were cited in our brief.

That 2009 task-force report was ultimately the catalyst for the Legislature’s 2012 enactment of Chapter 278A.  The report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, made four sets of recommendations aimed at reducing the number of wrongful convictions in the Commonwealth—including proposed language for a new law to create the framework for individuals to assert their claims for access to forensic evidence, such as DNA, associated with the case that led to their convictions.

It appeared that the justices were interested in the BBA report inasmuch as the language it suggested—“Any person who has been convicted of a criminal offense in a court of the commonwealth, and is in custody or whose liberty is restrained as the result of that conviction”—could offer guidance in interpreting the language the Legislature later approved.

They also noted that the BBJ article presciently foresaw that this very issue would one day be before the SJC:

Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”). 

One final point made from the bench at argument, and one that echoes a core conclusion of the BBA’s task-force report, is that testing forensic evidence even after conviction is critical to maintaining the integrity of entire system of justice—not only because it helps correct, and even prevent, a wrongful conviction, but also because it allows law enforcement to continue to pursue the actual perpetrator.

The video of the Johnson argument can now be viewed on-line.  We are expecting a decision from the Court by the end of summer and will of course update you when it arrives.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Participates in ABA Day Lobbying

Leadership Visits Congress to Advocate
for Legal Aid and Loan Forgiveness

Every year, the American Bar Association (ABA) invites bar leaders from across the nation to Washington, DC, for a day of lobbying on issues of primary importance to the organized bar, known as ABA Day.  And each year, the BBA’s President and President-Elect make the journey, alongside their counterparts from the MBA, to meet with members of the Massachusetts delegation and relay our shared concerns.

This year was no different, with President Jon Albano and President-Elect Chris Netski traveled to Congress, joined by their opposite numbers at the MBA, Chris Kenney and John Morrissey.

The ABA selects two issues each time to ask its members to speak to their respective elected officials about.  This year, like every year in recent memory, one of those is the federal appropriation for the Legal Services Corporation (LSC), the leading funder of legal-aid providers throughout the US.  Our second topic for this event was the Public Service Loan Forgiveness Program (PSLF), established by Congress in 2008 to provide assistance with student debt to workers in public service who have made qualifying payments for 120 months (or 10 years).

BBA, MBA, and ABA reps meeting with Congressman Bill Keating

LSC funding

LSC is always on our minds when we sit down with members of Congress, because of the critical role it plays in promoting access to justice for those who would otherwise not be able to afford an attorney.  We are very fortunate in Massachusetts that our legal-services providers benefit from the state appropriation to the Massachusetts Legal Assistance Corporation (MLAC), but other states are much more reliant on federal funding—some of them entirely dependent.

This year, for the third straight time, the White House’s budget plan proposes to completely de-fund LSC, which would have devastating consequences for legal services nationwide.  There has been enough support for LSC in Congress to reject that effort, yet funding has, for many years now, failed to keep up with the demand.  This year, the LSC line-item stands at $415 million, a figure that we asked to Congress to increase to $593 million.  Even that significant boost, however, would leave LSC with a smaller budget, in inflation-adjusted dollars, than it had in the ‘80s and ‘90s.

We are also fortunate to be represented by a delegation that has offered steadfast support for LSC funding over the years, and we were met with nothing but confirmation of that support in our meetings with Congresspeople and their staffs.  We hope that we were able to offer arguments that they can use in convincing their colleagues to provide meaningful growth in LSC funding as the current federal budget cycle plays out.

The BBA has a unique story to tell on this issue, as we published a report in 2014 demonstrating that legal-aid funding actually provides a positive return on investment.  Other states have since produced similar findings, but we were especially gratified to learn, in our meeting in Representative Joe Kennedy’s office, that the night before, at an LSC event at the Supreme Court, Justice Elena Kagan had cited the BBA’s report!

BBA President Jon Albano and President-Elect Chris Netski, outside the US Supreme Court

Public Service Loan Forgiveness

PSLF recently marked its 10-year anniversary, which should have meant that its earliest participants would be starting to see approval of their applications for debt forgiveness by now, and on a rolling basis going forward.  However, the program has been plagued by numerous administrative problems—including lack of clarity on how to meet its requirements and mismanagement by the Department of Education and its private contractors—and, as a result, only a minuscule portion of applications have been approved.

Furthermore, political support for the program has waned, in part because of misleading estimates of its projected cost, and the White House has proposed ending it entirely.  This outcome would not only break faith with those who thought they had been fulfilling all the program’s mandates but also threaten to make it more difficult for public-service employers—including not only legal-aid attorneys, public defenders, and prosecutors, but also nurses, first -responders, teachers, social workers, and many other professionals—to recruit and retrain qualified staff to carry out their mission.

To help with our cause in DC, we contacted several Boston Bar Foundation grantees, to ask them to share stories about how PSLF has affected their work, and what its elimination would mean.  We heard back from several with powerful, personal stories about the sacrifices their staffers (or, in a couple of cases, directors) have made to pursue their commitment to working in the public interest, typically at much-lower salaries than they could obtain elsewhere. 

One message we heard more than once, and conveyed in our meetings in Congress, is that in legal services (as elsewhere, presumably) it’s beneficial to have staff who mirror their clientele.  In the absence of the federal government’s promise of assistance with student debt, it would be that much harder to meet that ideal.

As with our LSC advocacy, we found support in all the Congressional offices we visited.  Senator Ed Markey sought to connect with the grantees we’d heard from, so that he could better use those stories to make the case for continuing PSLF.  Representative Seth Moulton’s aide told us he wants to see the program not only retained but expanded.  And Representative Jim McGovern’s staffer said he’s looking at the issue through the lens of student debt generally—with PSLF being just one step that needs to be taken to address it.

MBA President-Elect John Morrissey, Senator Ed Markey, MBA President Chris Kenney, BBA President Jon Albano, BBA President-Elect Chris Netski

We’ll keep an eye on these two items throughout the budget process in Congress.  And we’ll be back in DC next year for ABA Day 2020.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief in Defense of Post-Conviction Access to Forensic Testing

Commonwealth v. Johnson Case Addresses Who Is Eligible to Apply Under Chapter 278A

In keeping with its long-standing commitment to facilitating access to justice and upholding the integrity of the criminal-justice system, the BBA this week filed an amicus brief arguing that an individual should be allowed to seek forensic testing to help prove his claim of factual innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

BBA Background

The law at issue in this case is Chapter 278A of the General Laws, which originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment in 2012.  That report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, offered a variety of recommendations to reduce the likelihood of wrongful convictions and thereby improve public safety.  Those prescriptions included not only a post-conviction procedure by which people could pursue forensic testing on evidence involved in their cases, such as DNA, but also changes to eyewitness identifications, police interrogation techniques, and trial-court practice.

Section 2 of Chapter 278A limits who has standing to request such testing, to someone who “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated … is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” 

After its enactment, two members of the Task Force, David M. Siegel and Gregory I. Massing, published an article on the statute in the Boston Bar Journal.  As our amicus brief indicates, they were already contemplating that sex offender registration likely qualifies as a restraint on liberty under the statute, long before that issue reached the SJC: “Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006) (‘In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.’).”

This is not the first time that the BBA has weighed in with an amicus brief on Chapter 278A.  In Commonwealth v. Wade (“Wade III”), the BBA again argued—ultimately successfully—on behalf of a defendant whose petition for forensic testing had been denied based on an overly restrictive reading of a separate threshold requirement in the statute. 

Specifically, Sections 7(b) (3) and 3 (b) (5) of Chapter 278A allow for post-conviction forensic testing if the defendant can show, among other things, that the requested testing had not been conducted at the initial trial for any one of five reasons outlined in the statute, including inadmissibility of the evidence, or the subsequent development of new DNA tests.  Wade contended that the test sought had not existed at the time of his trial, which the SJC agreed is enough to satisfy one of the requirements of the new law.

The case reached the SJC after a lower-court judge had denied Wade access to post-conviction DNA testing by imposing an additional requirement not found in the statute: identification of the “primary cause” or “real reason” for a lack of any DNA testing at the time of trial.

The instant case

In the case of Commonwealth v. Johnson (SJC-12673), scheduled to be argued on May 9th before the SJC, the defendant completed his Massachusetts sentence and is not on parole or probation.  He is, however, currently incarcerated in Florida for failing to register as a sex offender, as required as a result of his conviction here.  The SJC invited amicus briefs on the following issues:

Where the defendant pleaded guilty in Massachusetts to indecent assault and battery, received a sentence of time served, was required to register as a sex offender as a consequence of the conviction, and was subsequently convicted of failing to register and is currently incarcerated in a Federal prison in Florida for that offense, whether he is eligible to file a motion for postconviction scientific testing under G. L. c. 278A, § 2 (requiring, among other things, that moving party “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction”); specifically, (a) whether his current incarceration is “as a result of” the initial conviction of indecent assault and battery for purposes of the statute, and (b) whether the requirement that he register as a sex offender is itself a restraint on his liberty as a result of his conviction within the meaning of the statute.

The BBA’s brief focuses exclusively on (b) above, citing analogous recent rulings from the SJC and elsewhere, to argue that his liberty is “otherwise restrained” where his sex-offender registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP, states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, pointing out that “the Court has repeatedly acknowledged that sex offender registration seriously implicates liberty interests, necessitating due process protections.”  The brief goes on to say:

[I]ndividuals required to register as sex offenders are uniquely subject to some of the most severe collateral consequences of any criminal defendants. Johnson’s brief succinctly catalogs the many onerous requirements and restrictions imposed upon registered sex offenders in Massachusetts. … This Court has also observed, in extensive detail, the abundance of “exceptionally burdensome” requirements accompanying registration since the passage of significant revisions to the statute after 1999. See Doe, 473 Mass. at 304-308. Beyond the practical burdens accompanying registration, this Court also found that sex offenders are subject to immense discrimination, through both physical restriction and societal ostracization, on a level without parallel for any other type of criminal defendant. See, e.g., id. at 308 (discussing the “profound humiliation and community-wide ostracization” accompanying registry requirements, in addition to “housing and employment discrimination, harassment, and assault”); Doe v. City of Lynn, 472 Mass. 521, 530 (2015) (in striking down an excessively broad residency restriction targeting sex offenders, “we note the grave societal and constitutional implications of the de jure residential segregation of sex offenders. . . the days are long since past when whole communities of persons, such Native Americans [sic] and Japanese–Americans may be lawfully banished from our midst”).

If the SJC were to rule against Johnson on the issue of restraint of liberty, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, frustrating the purpose and spirit of the statute.  “Such an outcome would have damaging consequences not only for access to justice in all those cases,” said Shih, “but also for public faith in the justice system’s ability to identify and undo wrongful convictions.”  Indeed, the hope is that the very existence of Chapter 278A should also encourage greater accountability and prospective effort to prevent wrongful convictions from happening to begin with.

Speaking on Johnson and Wade, Erin Higgins of Conn Kavanaugh, co-chair of the BBA’s Amicus Committee, said, “Both these cases demonstrate our steadfast adherence to the principle of access to justice and our interest in rectifying wrongful convictions.”

A ruling in the case is expected by August.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: New Decision Bars Bond Hearings for Certain Asylum Seekers

Since the release of our Immigration Principles last year, we have, from time to time, offered updates on significant immigration developments and events. On Tuesday, April 18, US Attorney General William Bar released a decision that revoked the right of certain asylum seekers to ask an immigration judge for release on bond. The ruling is set to go into effect in 90 days and will almost certainly face legal challenge in the meantime. This latest development prompted us to revisit the BBA principles, our work on immigration-related policies and practices, and larger questions about the functioning of our immigration court system – all of which you can read more about below.

Attorney General Barr’s Decision in Matter of M-S

                William Barr’s decision in Matter of M-S represents the first time he has used this power to issue binding precedent on the immigration courts, following the trend started by his predecessor, Jeff Sessions, who selected the case for attorney general review last October. In Matter of M-S, Barr overrules a 2005 decision that guaranteed bond hearings for certain migrants, including some who passed a “credible fear” interview, the first step in an asylum review. Instead, he concludes that a migrant “…who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond.” If this ruling goes into effect, individual asylum seekers who did not enter at a designated port of entry would be able to be released from detention while waiting for their case to be heard by a judge only if Immigration and Customs Enforcement (ICE) allows for release on parole, a practice that ICE has been using less and less under the current administration. 

                AG Barr has delayed the effective date of the decision for 90 days, so that the Department of Homeland Security (DHS) can “conduct necessary operational planning,” noting that his decision to overrule the 2005 decision will have “an immediate and significant impact on [DHS] detention operations.” It’s anticipated that the decision could add to the existing overcrowding issues in immigrant detention centers.

                As mentioned, the decision applies only to individuals that have crossed the border without authorization, and not at an official port of entry. The new rule will not apply to families or unaccompanied children, who currently make up a majority of people crossing into the US without papers. Under the terms of the Flores Settlement Agreement years ago, ICE cannot keep immigrant families in detention for prolonged periods and, Matter of M-S does not impact that settlement agreement.

When an individual crosses the border without authorization, they can be deported without a hearing, but if that individual declares that they have a fear of returning to their home country or that they wish to seek asylum, they have a right to an interview with an asylum officer to determine whether the individual has a “credible fear.” If it is determined that “credible fear” does exist, they can formally apply for asylum through a hearing before an immigration judge. The new decision would mean that, unless granted parole at the discretion of ICE, all individuals who crossed without authorization outside the ports of entry would be held for the entire scope of time between the screening interview and the full hearing.

The decision comes on the heels of two relevant federal cases related to immigration court bond hearings. In 2018, the Supreme Court held that the Immigration and Nationality Act did not give an immigrant the right to periodic hearings to determine whether they may be released on bail. Attorney General Barr cited this case as support for his decision in Matter of M-S.

Just a few weeks ago, however, a federal judge ruled that bond hearings for eligible asylum seekers must be held within seven days of passing the screening interview. If implemented, this would have resulted in an influx of new hearings in already-overcrowded immigration courts and likely a large number of releases from detention. The California ruling was delayed for 30 days for appeal, but Barr’s decision in Matter of M-S obviates the judicial ruling by barring bond hearings for all individual asylum seekers not crossing at a port of entry.

BBA Principles and Positions

               As noted above, the BBA’s Immigration Principles have provided a framework through which the BBA approaches immigration-related matters since their adoption by the Council last year. The four principles read:

  • Principle 1: Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
  • Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.
  • Principle 3: The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.
  • Principle 4: 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 Working Group’s accompanying report further expounds on each of these four principles. For example, under Principle 2, the report specifically explains that “we join the American Bar Association and others in recognizing that even people who enter the country without authorization should be treated fairly and humanely. For that reason, undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk.”

And under Principle 4, the Report gets even more specific, noting, among other things, that “access to a fair immigration process with independent judges” is key to ensuring access to justice and the rights of all those within our borders. This section explains the barriers to justice routinely faced by immigrants and the role and importance of independent immigration courts and judges.

With these principles in mind, we’ve responded to a number of recent proposals and policies. For example, when the administration proposed a policy that would not allow those crossing the border between official ports of entry to claim asylum, we issued a statement expressing concern and reiterating our commitment “to standing up for the rights of immigrants, advocating for the fair and humane treatment of all people present in our country, and upholding the bedrock principles of access to justice and due process for all.” You can read the full statement here

                A few days before responding to the new asylum policy, we had submitted comments in opposition to a proposed federal regulation that would have significantly altered the current policies in place under the Flores Settlement Agreement, which established protections for unaccompanied immigrant children. Those comments specifically note that “the BBA has spoken against the use of prolonged and unnecessary detention in immigration settings for years, calling for detention to be used only in extraordinary circumstances, such as when an individual presents a substantial flight risk or a threat to national security or public safety.” The comments also note that “[i]n those instances when detention must occur, the BBA supports detention in the least restrictive setting possible and has long maintained that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability.” You can read the full comments here.

                You can read more about other recent BBA immigration-related policies and responses here and here.

The Need for Immigration Court Reform

                With our principles and these past actions in mind, it’s worth focusing in on one particular aspect of the Attorney General’s decision in Matter of M-S, which highlights an unusual, and perhaps oft-forgotten, feature of the current immigration system: immigration courts are under the purview of the Executive Branch via the Department of Justice and immigration judges are career attorneys appointed by the Attorney General. This explains why AG Barr has the authority to issue a decision to bar the use of bail for asylum-seekers that is binding on all immigration court judges.

                Interestingly, at the same time that the Council adopted the Immigration Principles, it also determined that it was appropriate to immediately endorse a policy proposal to restructure the immigration courts under Article 1, similar to existing federal Bankruptcy and Tax Courts. This position builds off years of the BBA speaking about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. It also aligns with our constant support for adequate funding for the judiciary, because we understand that a well-functioning and fully independent judiciary is critical to the fair administration of justice.

The BBA is far from alone in calling for a restructuring of the immigration court system: the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA), the Federal Bar Association, and the American Bar Association (ABA), to name a few, all also endorse moving immigration courts under Article 1 to better ensure proper independence and oversight. The ABA’s full report on the issue explains in detail why such a change makes sense.

An immigration court system that is overseen by the Attorney General is inherently political and doesn’t feature the safeguards guaranteed to other courts. Recent developments have highlighted the shortcomings of this structure. For example, last year the NAIJ filed a grievance asking the Justice Department’s Executive Office for Immigration Review to acknowledge in writing that it will not interfere with the “decisional authority” of judges in the assignment or reassignment of cases. NAIJ President Judge A. Ashley Tabaddor wrote, “The decisional independence of immigration judges is under siege.” And the AILA also recently issued a statement in response to another decision that limits the ability of judges to grant continuances, noting that “until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process.”

Matter of M-S seems also to highlight the value of a restructuring of our immigration courts so that judges are able to make decisions based on the laws in place, without pressure to conform to the priorities and decisions of whoever is in power at the Executive level. We’ll keep you posted as to how you can join us in supporting an immigration court system that is effective, efficient, and independent.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Priority Letter Sent to House Ways and Means Chair

Last month, we updated you on the launch of our 2020 (FY20) budget advocacy. As mentioned there, our attention is now focused on the Legislature as the House, and then the Senate, craft their own budgets. Right now, the House Committee on Ways and Means is examining the Governor’s Proposal and gearing up to release its own recommendations, which will be debated and voted on in April.

We communicate our budget priorities at each step of this process, and earlier this month, BBA President Jonathan Albano sent a letter to the newly-appointed Chair of the House Committee on Ways and Means, Aaron Michlewitz, explaining those line-items critical to a well-functioning legal system and providing equal access to justice to residents of the Commonwealth.  

You can read the full letter here.

As usual, we spell out our support for the Massachusetts Legal Assistance Corporation (MLAC), the largest funder of legal services organizations in the Commonwealth and argue for a $5 million increase in funding, or a $26 million total appropriation. For the full overview of why this funding is so important, visit this blog post

Our letter also explains our continued support for adequate funding for the Trial Court, which handles all the cases filed in the Commonwealth’s courts and urges the inclusion of the Trial Court’s requested maintenance-level appropriation and any necessary increases that results from collective-bargaining negotiation. From there, the letter further supports the full funding of the Committee for Public Counsel Services operations up-front, noting the vital role the agency plays in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States. And finally, the letter asks that $5 million go toward community-based residential re-entry services, which would help to ensure lasting recidivism reduction on the heels of last session’s historic criminal justice reforms.  

Visit this post for more details on these budget asks.

After the House debate and vote, it’s on to the Senate and then to a conference committee to reconcile the differences between the two. We’ll keep you posted at each step of the way and let you know how you can join us in supporting these critical line-items!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Endorses Fix for Alimony-Deductibility Conundrum

This week, the BBA Council endorsed a measure designed to fix a problem dropped in our laps by a recent change in federal tax law.  To get there, though, we’re going to have to work our way through a discussion of alimony, tax deductions, and a little math.  (Or, just skip to the last two paragraphs!)

When Congress undertook a massive overhaul of the federal tax code near the end of 2017, they included a ticking time-bomb for divorce lawyers and their clients—one set to go off at the very end of 2018: Starting in 2019, all newly-ordered alimony would not be deductible from the payor’s gross income (nor attributable to the payee’s) for federal tax purposes.

For divorcing couples, this amounts to the IRS reaching deeper into their collective wallets—or, depending on how you look at it, the end of the federal government partially subsidizing alimony.  That’s because until this year, couples were able to shift that amount of income from the payor to the payee—who quite often, even with alimony included, occupied a lower tax-bracket than the payor, meaning the amount of alimony was taxed less than it otherwise would be.

In one sense, this is logical, since the payor doesn’t truly enjoy the benefit of this income, as it flows through to the payee.  In another sense, it helped somewhat in resolving alimony disputes, because while the payor could be said to have “lost” that amount of income, the loss was reduced by a consequently lower tax burden.

Consider an alimony payment of $10,000 per year, with the payor in the 25% bracket and the payee in the 10% bracket.  The former’s taxes go down by $2500, but the latter’s rise by only $1000.  It’s as if the couple has an extra $1500, thanks to the feds.

Now that’s been wiped away, the federal government gets paid first, and it makes for less money to go around in alimony cases.  But in Massachusetts, in particular, it presents a dilemma, because of the way our statutory alimony guidelines operate.  When alimony reform was enacted in 2011, language was added to say that, for general alimony, a judge should award “30 to 35 per cent of the difference between the parties’ gross incomes”, or the payee’s need—whichever is smaller.

At the time, it was assumed that alimony would remain federally tax-deductible, and the 30-35% range offered a consensus rule of thumb for achieving the desired outcomes (though a judge can always deviate from that guideline “upon written findings that deviation is necessary”).  Now, however, with the new tax law shifting the burden of paying taxes on alimony from the payee to the payor, the 30-35% rule is producing skewed, unintended results—yet judges are left without clear guidance on what to do about it.

Enter Marc Bello, a forensic accountant who specializes in marital disputes.  He explored hundreds of scenarios, with differing levels of payor and payee incomes, to calculate the after-tax impact of the federal change on Massachusetts couples.  What he found was that (a) under the new regimen, payees were ending up with more take-away income than before—sometimes as much as the payor; but (b) this problem could be solved by adding a new percentage guideline for non-deductible alimony.

(This would be as good a time as any to point out that alimony remains deductible by payors for Massachusetts state-tax purposes.  And that alimony payments made pursuant to pre-2019 orders remain federally deductible.)

Marc concluded that in virtually all situations, applying a rule that alimony should equal 23-28% of the difference in the parties’ incomes (when alimony is not deductible) leads to the same after-tax outcome as the current 30-35% rule does (when alimony is deductible).  After his presentation to the BBA’s Family Law Section, they voted to endorse a change in the percentage guidelines to reflect his findings.

Some in the legal-services community expressed concern that their clients might be negatively affected, but after Marc delved further into the low-income scenarios behind his research, our Delivery of Legal Services was satisfied that the proposal would effectively maintain the status quo even in such cases.  They voted to endorse specifically the 23-28% range, out of fear that if the new figures were any lower, they could then begin to harm low-income payees.

After presentations to our Executive Committee and Council this month by Family Law Section co-chairs Lisa Wilson of Wilson, Marino & Bonnevie, P.C., and David Friedman of Rackemann, Sawyer & Brewster, the Council voted to support the 23-28% guideline for non-deductible alimony, which would sit alongside the existing 30-35% guideline for deductible alimony.

This proposal has also won the endorsement of the Massachusetts Bar Association, and the Women’s Bar Association, and we hope that this unified front will help us convince the Legislature of the urgency of the issue.  We will next seek a sponsor to file legislation and advocate for its timely enactment.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Suffolk County DA Rachael Rollins Speaks at the BBA

We were pleased to welcome the new Suffolk County District Attorney to 16 Beacon Street last week, to hear about her formative experiences, her plans for the office, and her take on hiring and management.

Fresh off her historic election last fall, and barely two months into the job, DA Rachael Rollins visited the BBA on March 11 and took questions from Cat Ham, of the Suffolk DA’s Homicide Unit and co-chair of the BBA’s Criminal Law section, and Kate Cook from Sugarman, Rogers, Barshak & Cohen, P.C., as well as from audience members.

After earning a lacrosse scholarship at UMass-Amherst—and then engaging in a legal battle to save the program and other women’s sports at the school by threatening to bring a Title IX discrimination lawsuit—DA Rollins entered law school with a plan to pursue a career in sports law, specifically to become the first female Executive Director of to the National Basketball Players Association. She credited the co-op program at Northeastern Law School with helping her learn more about the field and gain valuable experience. While at NUSL, she interned at the NBPA and with the Boston Celtics After earning an LL.M. at Georgetown, she ultimately landed at the National Labor Relations Board in Boston before joining the firm then known as Bingham McCutchen (now Morgan Lewis). She said that, at Bingham, her work with former Suffolk DA Ralph Martin, the first African-American to hold that post, and her selection to participate in a District Attorney rotation in Plymouth County steered her toward criminal law.

What drove her to make the run for DA in 2018 was her anguish at watching as black and brown men were shot by police across the country, with no transparency about charging decisions (or lack thereof). That was also her motivation for announcing, the same day as her BBA appearance, the creation of a Discharge-Integrity Team, to help her exercise her exclusive authority on how to proceed in cases of police-involved shootings. Rollins is also taking pains to keep the deceased’s family apprised of the investigation’s findings.

Perhaps the policy she’s most associated with, in the public’s mind, is her list of 15 offenses for which she’s pledged to consider alternatives to prosecution.  DA Rollins said she’d given much consideration during the campaign to the development of the list after discussions with law enforcement, criminal defense attorneys, prosecutors and judges about the types of cases where a different kind of accountability than incarceration is called for. Her plan is to pause and do some “quality review” before putting people on what she described as a “conveyor belt” to jail, because these are overwhelmingly defendants dealing with poverty, mental-health concerns or substance use disorder in those instances. One part of the more thoughtful approach she’s aiming for is to make social services more available. But she promised to review the policy and go where the data lead, after consulting the public.

The DA intends to be closely involved with the communities she serves. In part because she’s seen it first-hand in her own immediate family, she understands that the justice system needs to better handle the cycle of treatment and relapse on the path to recovery from addiction. That means more case workers, social workers, and clinicians—an effort, she notes, that should’ve begun in the 1980s when it was mostly Black and Brown people struggling with addiction. She believes that since she has the power to send someone away, she needs to visit the prisons and jails she’s sending them to. And her ADAs should understand their role, too: If you want to work for her, she wants to know what drives you to be a prosecutor.

Asked about her greatest challenge so far as DA, Rollins cited the sprawling bureaucracy she now heads up, and the extreme pace of work—beyond anything else in the Commonwealth, by her measure. There’s simply very little time to dwell on each of the individual decisions required in the thousands of cases her office handles. And yet, working alongside similarly-situated victims who may have different ideas of justice, on the same fact patterns, she’s learned there’s no one “right” answer or approach; each case must be addressed on its own merits.

“We work at a very fast pace and handle incredibly complicated and violent matters,” Rollins said. “Not everyone can handle this pace of work and not everyone is cut out for it. I am incredibly proud of my staff, who show up every day, work hard, and give their best to the Commonwealth.”

Nevertheless, as a survivor of cancer, this job is not the toughest thing she’s faced. Her hard-earned strength and resilience are just what the job calls for, in her estimation. As she told the BBA audience, a DA needs to be decisive and instill confidence in employees, while still demanding accountability. Rollins says she knows what she doesn’t know, and she’s not afraid to defer to expert staffers.

Finally, responding to a question from Kate Cook, DA Rollins offered this advice to the new lawyers and law students in the room: First, be great at what you do and how you do it. At the DA’s Office, she seeks out people who are driven, hard-working, and ambitious—qualities more important to the ADA job than their credentials. “Be your own advocate,” she advised, and know when it is time to move on.

—Michael Avitzur
Government Relations Director
Boston Bar Association