Posts Categorized: justice system

Massachusetts leads, SCOTUS follows? Retroactivity in Juvenile Life Sentencing

Earlier this week, the US Supreme Court heard oral argument in the case of Montgomery v. Louisiana.  The transcript is available here.  The case addresses, along with jurisdictional concerns, whether the Supreme Court’s 2012 ruling in Miller v. Alabama has retroactive effect.  In criminal cases, the Supreme Court’s rulings generally do not have retroactive effect unless the new rule is considered “substantive.”  Miller declared mandatory life sentences without the possibility of parole for homicides committed by minors to be in violation of the 8th Amendment prohibition on cruel and unusual punishment, and required judges in such cases to consider the defendant’s youth, background, and capacity for rehabilitation, as well as the nature of the crime, before handing down a sentence without parole.  Miller followed Graham v. Florida (2010) which prohibited life sentences without the possibility of parole for non-homicide offenses.

Montgomery brings to SCOTUS the case of Henry Montgomery, a 69 year old who has been in prison since he was 17 years old for murdering a sheriff’s deputy in Baton Rouge.  He argued in state court that the Miller holding must be applied retroactively, thereby making him eligible for parole.  The case rose to the Louisiana Supreme Court, which held against Montgomery.  The US Supreme Court granted certiorari in late March of this year.  Louisiana argued in part that the Miller holding was not substantive enough to have retroactive effect, because life without parole sentences are still available for juveniles in homicide cases as long as they are not mandatory.

Should the Court find for Montgomery, about 1,500 prisoners convicted of homicide as juveniles and given mandatory life sentences without the possibility of parole would suddenly gain parole eligibility.  While the Supreme Court is considering the case, analysts suggest that they may still skirt the question of Miller’s retroactive effect, waiting until a prisoner files suit under a federal habeas corpus statute rather than in state court.

Massachusetts dealt with this issue over the last couple of years.  In response to Miller, the SJC held in late December 2014 in Diatchenko v. District Attorney that all life without parole sentences for juveniles were unconstitutional in Massachusetts, even if imposed by a judge at her discretion. This decision came only weeks after the BBA approved principles opposing these sentences.  In Diatchenko, the justices considered – as had the Miller court — current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  But they reasoned that the proper conclusion is that a judge cannot possibly ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment.

The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, became immediately eligible for parole.  In addition, the Diatchenko holding also applied retroactively to other juvenile life without parole convicts who had served at least 15 years, making roughly 65 inmates suddenly parole eligible for the first time.  “Eligibility for parole” merely entitles an inmate to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed, has taken full responsibility for his or her actions, and poses no threat to public safety.  However, the ruling did eventually result in the release of at least a few individuals in Massachusetts who had been serving these sentences.

Diatchenko also invited the Legislature to revise its juvenile-murder sentencing scheme to come into line with the ruling which stated that juvenile offenders must receive a “meaningful opportunity” for parole, without defining the appropriate length of the mandatory portion of a sentence before eligibility.  As we described, after a contentious hearing in May 2014, lawmakers agreed on a compromise bill, H4307, that would permit parole eligibility after 25-30 years for juveniles convicted of premeditated murder and after 30 years for juveniles found guilty of murder with extreme atrocity or cruelty.  Juveniles convicted of felony murder would be parole eligible after 20 to 30 years.  The bill was enacted in July 2014.

We are proud that the Massachusetts Judiciary and Legislature successfully addressed the retroactivity issue in the wake of Miller, and we hope that the U.S. Supreme Court will use Montgomery as an opportunity to set the record straight for the individuals in other states who are serving sentences under a sentencing scheme now recognized as unconstitutionally cruel and unusual punishment.  A decision is expected by late spring, and we will keep you posted on the latest developments with this case.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.

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The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.

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Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.

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We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”

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Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.

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The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

From Boston to the Vatican and Beyond: Haskell Cohn Honoree Chief Justice Rapoza

The BBA is proud to be honoring Appeals Court Chief Justice Phillip Rapoza with the 2015 Haskell Cohn Award for Distinguished Judicial Service on September 24 (click here for tickets and details).  The award was established by Mintz Levin for one of its founding members, Haskell Cohn, in 1975 in honor of the 50th anniversary of Cohn’s admission to the bar.  It is presented to a member of the Massachusetts judiciary, or a resident of Massachusetts who is a member of the Federal Judiciary, who has distinguished himself/herself in a manner that calls for special recognition.

A tax and estate planning expert, Haskell Cohn served as BBA President from 1969 to 1971.  He was known for espousing many of the tenets central to the BBA’s mission.  As BBA President, he helped spark a fundraising drive to raise money for law school scholarships for students of color.  He urged lawyers to go beyond the narrow confines of the profession and was a driving force behind a BBA effort to help expand affordable housing stock in Boston.  He also cared deeply about the quality of the judiciary and served as Chair of the Joint Bar Committee.

The 31st Haskell Cohn Award recipient, Justice Phillip Rapoza, served as Chief of the Appeals Court from October 17, 2006, to June 30, 2015, when he retired from the judiciary.  He had served on the Appeals Court since 1998, and prior to that was a District and Superior Court Judge since he was appointed to the bench in 1992.  As Chief Justice, he played an important role in setting many key precedents for Massachusetts.  He also served admirably as chief administrator, managing all of the other Appeals Court justices and staff.  Finally, he worked to modernize the appeals court as a strong proponent and early adopter of electronic filing technology.

Justice Rapoza’s influence extends far beyond Massachusetts.  He is the grandson of Portuguese immigrants and is a leader in the Portuguese-American community in Massachusetts.  He is the first Portuguese-American judge to serve at the appellate level in Massachusetts. He served on the US Council of Chief Judges of State Courts of Appeals, lead the Commission for Justice Across the Atlantic, a judicial exchange program between the US and Portugal, and is President of the International Penal and Penitentiary Foundation.  In his role with the IPPF, he was recently invited to address the pope.  He used this opportunity to speak on the rehabilitation and reintegration of criminals, an issue we have discussed here a number of times beforeIn his speech he described the negative impact of high incarceration rates globally and the lack of rehabilitative opportunities for inmates.  He encouraged justice reinvestment through the use of alternative sentences, intermediate sanctions, and diversionary programs that would benefit the individual, their family, and the community at large.  The BBA has long supported these sorts of measures to end mass incarceration and we are pleased to see Justice Rapoza addressing them on a world stage.

Justice Rapoza is also a leader in the field of international criminal justice, working to spread the rule of law in the developing world, including serving on UN-backed war crimes tribunals in East Timor and Cambodia.  From 2003 to 2005, he took an unpaid leave of absence from the Appeals Court to work for the United Nations, serving in East Timor as an international judge and coordinator of the Special Panels for Serious Crimes.  The Special Panels was a war crimes tribunal established by the UN to prosecute crimes against humanity and other serious offenses committed during the Indonesian occupation of East Timor.

Justice Rapoza has demonstrated his remarkable commitment to justice and the rule of law both at home and around the world.  His work illustrates how a state court judge can have an influence around the globe, and he stands as a reminder of the excellence of the Massachusetts judiciary.  We look forward to presenting him with our highest recognition for the judiciary, and we hope to see you there.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

A First Step in Reversing “A Troubling Trend”

A couple of weeks ago, we posted the first of our two part SJC review posts on political free speech in the Lucas case.  This week we are going to look at another important decision, Commonwealth v. Tyshaun McGhee, upholding Massachusetts’ 2011 anti-human trafficking law.

The case alleged that the defendants approached three women, took and posted pictures of them in online advertisements, drove them to various locations to have sex with men who responded to the ads, and retained some or all of the money the women received as payment.

The defendants filed a motion to dismiss the sex trafficking charges on the grounds that the trafficking statute is unconstitutionally vague and overbroad, both on its face and as applied to them, and that the definition of “commercial sexual activity” is also overbroad.  In addition, they argued that because the statute lacks an element of force or coercion there is a risk that it will be enforced arbitrarily.

The statute at issue criminalizes “sexual servitude, forced labor, and organ trafficking.”  The relevant portions for this case are codified at M.G.L. c. 265 §§ 49, 50 and state the following:

Section 50. (a) Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, …  another person to engage in commercial sexual activity, … or causes a person to engage in commercial sexual activity … or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than 5 years but not more than 20 years and by a fine of not more than $25,000.

Section 49 defines “commercial sexual activity” as “any sexual act on account of which anything of value is given, promised to or received by any person.”

The SJC concluded that the statute is sufficiently clear and definite and the phrase “commercial sexual activity is “amply defined” (17).  The statute provides fair notice of the type of conduct it criminalizes, and it does not need to include an element of force or coercion to avoid vagueness as “the clear and deliberate focus of the statute is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent” and “the Legislature has determined that whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed.” (17 emphasis added).  In addition, the mens rea requirement signified by the use of “knowingly” in the statute provides sufficient protection against arbitrary enforcement of the statute (19).

The Court also reasoned that the statute is not overbroad because it only prohibits individuals from “knowingly undertaking specified activities that will enable or cause another person to engage in commercial sexual activity” (23).  It found no problem with the definition of “commercial sexual activity,” construing it with consideration of the plain language and legislative intent to refer to “any sexual act for value that involves physical contact” (25).

In the words of Alec Zadek, Mintz Levin, co-chair of the Human Trafficking Group of the BBA’s Delivery of Legal Services Section, this is “truly a fantastic result and affirms the hard work of everyone who worked on the legislation.”  Zadek has an active pro bono practice focusing primarily on survivors of sex trafficking and domestic violence, so he has seen firsthand the importance of this case.

Julie Dahlstrom, Clinical Legal Fellow in the Human Trafficking Clinic at Boston University School of Law and member of the BBA’s Immigration Law Section Public Service Committee, co-authored an amicus brief in the case on behalf of a number of domestic violence and human trafficking interest groups.

The brief explained the pervasiveness of the human trafficking problem and made many arguments echoed in the SJC holding defending the constitutionality of the Massachusetts statute.  She noted that the “case has tremendous implications for human trafficking survivors and the Commonwealth.  It means that those who knowingly harbor, recruit, and otherwise obtain women for sexual exploitation cannot operate with impunity.”

But this case is only a first step, in her view –

“The facts of this case bring to light a troubling trend. In Boston, there young women who are the fringes of our society – who are homeless and lack viable employment options. These women are exploited by men who seek to profit from and violently abuse them. The state human trafficking statute is an important tool in this fight. But we still need lawyers and others involved. Lawyers to play a key role to ensure that these women have effective representation, the protections they deserve, and the support necessary to exit commercial sexual exploitation.”

To that end, we encourage everyone to participate in our upcoming event, Justice for Trafficking Victims: Civil Litigation, Vacatur, Criminal Restitution and the Pro Bono Bar.  Dahlstrom will speak as will Martina Vandenberg from the Human Trafficking Pro Bono Legal Center on human trafficking and opportunities for pro bono attorney involvement.  With your help, we hope to shed light on human trafficking and hope that the McGhee case will serve as useful precedent.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Who’s Leading the Fight Against Mass Incarceration?

We are thrilled that Roca will be the 2016 BBA Adam’s Benefit’s Public Service Honoree.   Roca is a wonderful organization that works to “disrupt the cycle” of incarceration and poverty by helping young people in the Greater Boston area transform their lives.  Roca works with at-risk youths aged 17-24, many of whom are on the streets, have a history of legal problems, are involved in gangs, have dropped out of school, and/or are young parents.  The organization intervenes based on a scientific, data-driven model that has been proven effective at getting these young people the support, education, and jobs they need to stay out of trouble, earn a living, and have a positive impact in their communities.  Most importantly, Roca’s system works. Since its founding in 1988, the organization has helped more than 18,000 young people change their lives.

Roca’s important work complements our own policy efforts.  We have written before about the BBA’s position opposing mandatory minimums and our efforts to remove them in Massachusetts.  Earlier this summer, we were part of the discussion in the legislature, when BBA President Julia Huston provided testimony at a public hearing on mandatory minimum drug sentences.  In recent weeks, we have seen some momentum building around this issue on Beacon Hill.  We learned that Governor Baker, House Speaker Robert DeLeo, Senate President Stanley Rosenberg, and SJC Chief Justice Ralph Gants all signed onto a letter asking the U.S. Department of Justice and the Pew Center for the States to review and analyze Massachusetts criminal-justice policies, making recommendations on what works well, what doesn’t, and what changes can be made to improve the system. Though the timeline for this report remains unclear, we are hopeful it can make a difference this legislative session (watch a video of the Governor speaking about this study).

Senate President Stanley Rosenberg has been particularly vocal about the need for so-called “justice reinvestment” – changing policies to reduce incarceration and using the attendant monetary savings on programs and initiatives to further that cause.  By many accounts it costs around $40,000 a year to incarcerate an offender, while other programs, such as parole, are far less expensive.  Rosenberg points to states such as Texas, Washington, and Oregon as models of this movement, and is pushing for Massachusetts to follow their lead.  So what have these states done to fix their sentencing models?

Texas

Texas managed to dramatically reduce its prison population and incarceration rates with changes only to its incarceration policies, and not its sentencing regime.  Until recently, the number of inmates in Texas was booming: the state’s prison population grew from 50,000 in 1990 to 173,000 in 2010.  Texas was building prisons as fast as it could, but still many prisoners were transferred to for-profit prisons in other states.

Recognizing that this growth was unsustainably expensive, Texas lawmakers devised a treatment system.  They increased the amount of space in drug treatment programs and created intermediate sanction facilities, all at a fraction of the cost of warehousing inmates.  They also increased the amount of pre-trial diversion programs for people suffering from mental health illnesses and drug addiction.  These reforms have resulted in large drops in the prison population, the closing of a number of prisons, and a nearly 6% drop in the recidivism rate.  Crime is now at the lowest rate since 1968 and the closure of three prisons has saved $3 billion.

Washington

While Washington may have been a leader in drug law reform, becoming one of the first states to legalize recreational use of marijuana in 2012, it still has a way to go with sentencing reform.  According to a recent study, one in five prisoners in Washington is serving a life sentence, compared to one in nine nationally.  This is largely the result of the 1984 Sentencing Reform Act, which eliminated parole, and two subsequent voter-approved initiatives – the 1993 “three strikes” law, mandating life without parole for three serious felony convictions, and the 1995 Hard Time for Armed Crime law, requiring mandatory sentences for gun crimes.

The report also found a disparate impact on racial minorities (28% of those serving life without parole sentences are African-Americans although they comprise only 4% of Washington’s population) and exorbitant expense (an average life sentence costs $2.4 million per prisoner).

The Legislature appears to be taking notice.  Earlier this year, the House approved a bill to amend the “Hard Time for Armed Crime” law to give judges more discretion.  If enacted, the bill would permit judges to depart from the currently mandatory additional 18 to 60 month prison time in all every gun-related felonies if they feel the mandatory sentence enhancement results in a “clearly excessive” sentence.

Oregon

In only the last couple of years, Oregon has made major strides to curb its mandatory sentencing regime.  The state had operated under its so-called Measure 11 structure since 1994, whereby there were long mandatory sentences for 16 designated violent and sex-related offenses, “earned time” was prohibited, and juvenile offenders were tried in adult court.

As a result, the state built a prison system widely recognized as a national leader – “the system uses prison sparingly, locks up the right people and helps keep them from reoffending.”  Even though Oregon ranked well nationally in many statistics – holding the lowest recidivism rate, and ranking 33rd nationally in incarceration, incarcerating people at a rate that was 25% lower than the national average – it was still spending too much.  In 2013, lawmakers approved reforms to Measure 11, cutting sentences for crimes such as marijuana possession and felony driving, giving judges more discretion.  The result has been a decrease in prison populations and some savings that are being funneled to local governments for crime prevention measures.

As you can see, the sentencing policies for each of these states have their pros and cons.  They are all worth considering as Massachusetts prepares to reform its own policies.  We look forward to becoming the model for other states, and, hopefully, one without mandatory minimums.  In the meantime, we hope you will join us in a few months when we honor Roca for their outstanding work to keep young people out of the criminal justice system altogether.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Declines “An Invitation to Mischief” on Political Speech

Though August may be a quiet time at the State House, it has been anything but for the justices of the Supreme Judicial Court (SJC).  In the first two weeks of this month, the state’s highest court has issued two major decisions with particular interest for our members.  On August 6, the Court declared unconstitutional a 1949 law that criminalizes certain false statements used in political campaigns.  One week later, the Court upheld the 2011 anti-human trafficking law against its first challenge.    This week we will break down the free speech case and next week we will discuss human trafficking.  Both are important cases for the state and set key precedents that will shape their areas of law going forward.

During his state legislative campaign in the fall of 2014, Second Barnstable District Representative Brian Mannal was facing a challenge for his legislative seat.  In October, the Jobs First Independent Expenditure Political Action Committee (PAC) distributed brochures alleging that:

“Brian Mannal chose convicted felons over the safety of our families.  Is this the kind of person we want representing us?”;

“Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals.  Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders”; and

“Brian Mannal is putting criminals and his own interest above our families.”

The quotes refer to a bill sponsored by Mannal, a former public defender, which would have notified indigent sex offenders of their right to a public defender before Sex Offender Registry Board hearings.  Mannal has never represented sex offenders at board hearings.

In late October, approximately two weeks before the election, Mannal responded by filing a criminal complaint against Melissa Lucas, the PAC’s treasurer, alleging that she knowingly published false statements designed to defeat Mannal’s candidacy in violation of M.G.L. c. 56 § 42.  In November, Mannal won the election by a mere 205 votes.

Eight months later, the SJC weighed in, unanimously holding in Commonwealth v. Melissa Lucas that the law in question is an unconstitutional restriction on free speech.  The court reasoned that the law was a content-based speech restriction and thus merited strict scrutiny review, meaning the government must establish that the statute is both necessary to serve a compelling state interest and narrowly tailored to achieve that end.

The Commonwealth addressed the issue in two ways, arguing both that the statute does not apply because the statements at issue are opinions that cannot be proven false and also that the statute is constitutional because it only reaches fraudulent and defamatory speech, forms of speech that are not protected under the First Amendment.

While the court stated that free and fair elections may be a compelling interest (though they are not so in this case), the Lucas opinion is clear that § 42 is not necessary to serve that interest.  Though the statute could be used to punish defamatory or fraudulent speech, it casts a far wider net, reaching other forms of speech (12-13). The court explains that the statute can “be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech” (26-27).  The best protection against the speech contemplated in the statute is counterspeech, the “free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market” (29).  The court concludes that § 42 is “antagonistic to the fundamental right of free speech” (31) and declares the statute invalid.

However, social science may take issue with the court’s ruling.  As explained in the recent Boston Globe op-ed, “Confronting and Refuting Political Lies,” lies in political speech may have a major impact on the public and can be far more difficult to refute than suggested by the “marketplace of ideas” theory.

The lie itself usually opens up a new arena for discussion and, by being first on the ground, sets up the mental frame for the argumentation to come. Therefore, those wishing to refute a political lie have a two-part task: (1) They must convincingly articulate the truth and (2) they have to replace the existing frame of discussion with a more accurate one.

Those tasks are very difficult to accomplish.

Author Martin Evans, an organizational psychologist and professor emeritus at the University of Toronto, goes on to explain that the problem can compound itself, whereby when a candidate denies a lie, it only serves to reinforce the issue in people’s minds.  The best solution is actually to reorient the original frame by basically changing the subject, a challenging and undoubtedly frustrating thing to do.  In this context, § 42 comes from a good place – in theory protecting both candidates and the public from this situation.  However, as the SJC ruled, the statute is overly broad.  Could it be revised to reach only unprotected fraudulent and defamatory speech?

BBA Council member Jeff Pyle, Prince Lobel, who practices in media and First Amendment law, declared the decision “a resounding victory for the First Amendment.”  He believes that § 42 is “flatly unconstitutional” and that having such a law “is only an invitation to mischief,” opening the door for candidates to “strategically seek criminal charges in order to divert their opponent’s resources and distract from the campaign itself.”  Contemplating potential next steps by the Legislature, Pyle explained:

In my view, the Legislature also should not try to rescue the statute by limiting it to defamation or fraud.  To be actionable, a defamatory statement about a political candidate would have to be made with “actual malice,” meaning knowing or reckless falsity.  Other states have had laws that, unlike section 42, limited coverage to statements published with actual malice, but those statutes have been struck down nonetheless by such courts as the Court of Appeals for the Eighth Circuit (in the case of Minnesota’s statute), a federal district court in Ohio, and the Washington Supreme Court.  Limiting the statute to defamatory statements wouldn’t solve the underlying fact that it is counterspeech, not criminal process, that needs to be applied to false campaign claims.  Similarly, “fraud” is a poor fit to this kind of problem, because it requires not just a false statement, but inducing reliance to one’s detriment.

We will keep an eye out for any Legislative follow-ups and look forward to being part of the discussion should there be any proposed fixes.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

EOPSS Revises Rules for Attorney Access to Prisons

For those who have ever visited a correctional facility, you know that there are a host of security measures required upon entry. The Code of Massachusetts Regulations regarding attorney access at Massachusetts Correctional Institutions (103 CMR 486) is designed to facilitate inmate access to proper legal counsel while accommodating security concerns at prisons. Its purpose is to lay out standards to achieve that balance for attorneys, law students, and paralegals, as well as investigators and interpreters.

The Executive Office of Public Safety (EOPSS) in cooperation with the Department of Corrections (DOC) recently revised CMR 486 in response to concerns raised by several parties—including the BBA, the MBA, the ACLU of Massachusetts, Prisoners’ Legal Services, and the Committee for Public Counsel Services—with regard to the inconsistent application of these rules and overly intrusive searches of attorneys. Female attorneys, specifically, have found themselves subjected to seemingly arbitrary and unnecessarily invasive searches at prisons, often after an underwire bra triggers a metal detector in the course of an initial scan.

In response to an invitation for comments from EOPSS, the BBA and its Criminal Law Section reviewed the revisions to 103 CMR 486 and found the efforts to be worthwhile. The BBA believes that the revised rule will function to standardize applications of the CMR—alleviating concerns about intrusive searches of attorneys and facilitating attorney visits to clients at correctional institutions. We hope the final rules will be uniformly enforced by all DOC facilities and that support training for all involved personnel will ensure proper implementation. One thing we noted, however, is that 103 CMR 486 applies only to attorney visits at state prisons. We encouraged EOPSS to consider extending the revised rule to county correctional facilities as well, in order to ensure uniform proper treatment of attorneys at all correctional institutions in Massachusetts.

The Criminal Law Section was also largely supportive of the revised rule, calling it “generally fair, reasonable, easy to follow and an improvement over the existing CMR.” While the Section was pleased to see increased record keeping requirements—such as incident reports stating an articulable reason for a pat down search of an attorney whenever one is requested by an officer,—some members voiced concerns that this additional paperwork might be burdensome or impracticable. Moreover, while members were also pleased to see a general presumption supporting the reasonableness of an attorney’s explanation for the cause of any interference indicated by the metal detector scan, individuals hoped that these changes would not overly limit correction officers in keeping prisons safe. Other concerns included the fact that the revisions did not address rules regarding specific articles of clothing—particularly women’s clothing—that have been inconsistently implemented and enforced at certain correctional facilities.

On Tuesday, we attended the EOPSS hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives. Like the BBA, those who testified generally supported the revisions, but took the chance to offer some further suggestions based on their personal experiences and perspectives.

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Victoria Kelleher testifying while Michael Hussey (MACDL) looks on.

First to testify was Lauren Petit on behalf of Prisoners’ Legal Services (PLS), which viewed the changes as largely positive. Nonetheless, PLS suggested that changes should also include other professionals who are supervised by attorneys, such as paralegals and interpreters. Moreover, they believed that some of the language changes may be “unnecessary” or “overkill”, noting that they appear to be geared towards limiting access. As a result, Petit asked for further clarity in the definitions section of the CMR. She also suggested that the clearance process for law students and paralegals be centralized, so they wouldn’t have to be certified by each prison individually.

Joel Thompson of the Harvard Prison Legal Assistance Project, also welcomed the changes, but made proposals to move the revisions even further. He asked the panel to strive for consistency and clarity, speaking to the discrimination that female law students face when entering correctional facilities. The group sends 150 law students into prisons each year, but “every once in a while,” he said, “there’s an interaction that’s less than optimal,” noting that the problem seems to have worsened this year, and that female students are more likely to have difficulty gaining access. He proposed that the rule allow access to law students on the same basis as attorneys, on the grounds that they are in virtually the same position. Thompson also suggested the clarification and streamlining of the process for law students to get clearance to enter prisons.

The president of the Massachusetts Association of Criminal Defense Lawyers, Michael Hussey, raised the same concerns about consistency and equal treatment of men and women. He also testified for the easing of access to prisons for private investigators (PIs). He described PIs as essential to criminal defense and noted that the current requirements for PI access are unnecessarily burdensome (e.g., PIs are required to give one week’s notice before entry). Richard Slowe, the Chief Investigator for the Public Defender Division of the Committee for Public Counsel Services (CPCS), pointed out that CPCS staff investigators, unlike private investigators, are not technically covered by the new regulations and argued that they should be part of a central database of pre-screened visitors. Slowe also echoed the testimony of Hussey in stating that CPCS investigators should not only be allowed more accommodations (such as access to private interview rooms), but also be governed by the same rules as attorneys (as they are always supervised and are already subjected to extensive background checks).

Perhaps the most passionate testimony came from Victoria Kelleher, who works in private practice, and has been subjected first hand to what she termed “illegal searches.” She described her experiences entering prisons to visit clients as “unpredictable, stressful, and onerous” and shared how she has been turned away for wearing items such as boots and belts. These experiences only added to her concern that women are excluded for things seemingly unrelated to security (e.g. not being allowed access for wearing suit jackets with pants that do not match). Kelleher asked for more-specific definitions regarding apparel. In addition, Keller testified for further revisions that would allow attorneys to bring in files that are not necessarily “official”, but still pertinent to a client’s case. She also suggested that the DOC needs to “keep up with the times” and allow attorneys to utilize their own laptops to better defend their clients. Kelleher also recommended more training for prison security to ensure uniformity of attorney experiences and reduce delays that result when correction officers have to try to interpret the regulations. Her testimony spoke to the concerns of many female attorneys in Massachusetts who have had negative experiences with prison security.

While the revisions to 103 CMR 486 have been received positively, we will continue to monitor any further changes that may result from the BBA’s written testimony and that of the witnesses EOPSS and DOC heard from this week.

– Jing Li
Summer Intern
Boston Bar Association

Near Final State Budget and Innovation in Civil Legal Aid Advocacy

We are pleased to start with some great news.  The FY2016 budget appears to be just about settled as the House and Senate are voting on their Legislative overrides to the Governor’s proposed vetoes (read more about the budget process and all our budget priorities here), and both houses agreed to restore vetoed funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), and the Land Court ($291,470).  All three provide essential services to people in Massachusetts.  At the time of writing, the House had also voted 143-11 to override the Governor’s veto of $3.7 million from the Trial Court’s administrative staffing budget.  We hope the Senate will do the same.

The Land Court Department has statewide jurisdiction over the registration of title to real property and foreclosure and redemption of real estate tax liens.  It also shares jurisdiction over matters arising out of local planning and zoning board decisions.  The Housing Court Department has jurisdiction over civil and criminal actions, including equitable relief, which involve the health, safety, or welfare of the occupants or owners of residential housing.  It hears summary process (eviction) cases, small claims cases, and civil actions involving personal injury, property damage, breach of contract, discrimination, and other housing related claims.  It also hears residential housing code enforcement actions.  We are currently advocating for the statewide expansion of Housing Court jurisdiction, as it now covers less than 70% of the state population.  This can be accomplished through the enactment of S901/H1656, and we hope restoration of this funding demonstrates the value the Legislature sees in Housing Court, and represents a first step towards passage of these expansion bills.

Thank you to all our members who responded to our social media action alert for Prisoner’s Legal Services (PLS)!  PLS provides legal assistance to incarcerated individuals and promotes the safe, humane, and lawful treatment of Massachusetts prisoners through civil rights litigation, administrative advocacy, client counseling, and policy outreach.  It receives well over 2,000 requests for advice or assistance each year and is one of the only organizations of its kind in the state, working to assure prisoner’s rights are upheld – that they get the medical attention they need, their confinement conditions are constitutional, and they are safe from assault.  PLS’s vital legal aid also safeguards prison staff, protects public health, and eases the burden on our courts.

Throughout the budget veto and override process, the additional $2 million received by Massachusetts Legal Assistance Corporation (MLAC), which funds civil legal aid programs across the state, remained untouched.  This substantial increase will help MLAC expand its important work and brings its total funding for FY2016 to $17 million, representing a 15% year-over-year increase, when the overall budget increased by only 3%.  This percentage increase demonstrates a clear commitment from the Legislature and Governor to support civil legal aid while also running a more efficient Commonwealth, thanks to the cost savings provided by civil legal aid as demonstrated in our Investing in Justice task force report.

Even as the FY2016 budget cycle comes to an end, our work never stops.  It is precisely this summer “down time” when we need to redouble our efforts and find new ways to spread our message on civil legal aid.  The need for legal aid is ever increasing, and we constantly see new stories highlighting the need for increased funding for legal services agencies and underscoring the value of the assistance they provide.

With this in mind, we are pleased to report on an innovative new way the private bar is becoming involved.  The idea is law firm breakfasts throughout the year, featuring presentations by members of the Equal Justice Coalition (EJC) and MLAC on civil legal aid and advocacy.  It is based, at least in part, on the model started at Nutter McClennen & Fish, which holds a breakfast for the entire firm around the time of Walk to the Hill, the annual lobbying event for civil legal aid, to promote the Walk and explain the importance of lawyers advocating for civil legal aid funding.

The breakfasts are being arranged by the EJC with the help of its private bar liaison, Louis Tompros of Wilmer Hale.  After a successful start at his home firm, the group recently paid a morning visit to Holland & Knight, where Ben Stern was host and past BBA President J.D. Smeallie presented to a full boardroom on the findings of the BBA Statewide Task Force on Civil Legal Aid, which he chaired.  The breakfast also included presentations by MLAC Executive Director Lonnie Powers, EJC Chair John Carroll, of Meehan, Boyle, Black & Bogdanow, and EJC Director Deb Silva.

The speakers talked about the history of legal aid and its funding, the importance of legal services, the budget process, tips for advocacy, and the key role played law firm attorneys, who, as Louis explained,  understand the issues and have the means to do something about it.  The presenters stressed the importance of not only being an engaged voter but also contacting legislators to inform them that their constituents care about legal aid.  Just this small act can go a long way and make a major difference.

Thank you to everyone who helped us advocate for our budget priorities in this budget cycle.  We will continue to keep you updated, and hope that you’ll be ready to answer the call again when the FY2017 budget process begins in January.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Justice Scott Kafker Confirmed as Chief Justice of the Massachusetts Appeals Court

On Wednesday, July 22, by a 7-1 vote, the Governor’s Council confirmed sitting Associate Justice Scott Kafker to be the next Chief Justice of the Massachusetts Appeals Court.  Justice Kafker succeeds Appeals Court Chief Justice Philip Rapoza, who retired from the bench on June 30. As Chief Justice, Kafker will oversee the 20 other Appeals Court judges and–as he put it—work as “the daily guardian” of the Commonwealth.

This marks the first judicial appointment by Governor Charlie Baker, whose administration was applauded by the Council before the vote for putting forward such an “outstanding nominee right out of the box.” Councilor Terrence Kennedy remarked that “if they’re all like that, we’re going to have an easy ride the next four years.”  It is also is the first judicial appointment to have come through the recently-reconstituted Judicial Nominating Commission (JNC), chaired by BBA past-president Paul Dacier.  The JNC played an integral part in reviewing the candidate and is equally deserving of praise for its role in this process.

Who Is Justice Kafker?

First appointed to the Appeals Court in March of 2001, Justice Kafker has heard almost 2,700 cases and written opinions in nearly 900.  Prior to joining the Appeals Court, he served as chief legal counsel for the Massachusetts Port Authority (Massport) and deputy chief legal counsel to Governor William F. Weld.  During his time in the Weld Administration, Kafker served alongside Charlie Baker and current SJC Justice Robert Cordy.

A graduate from Amherst College and the University of Chicago Law School, Kafker spent his first few years out of school as an associate at Boston’s Foley, Hoag & Eliot. He has taught at Boston College Law School, the National Judicial College, and serves on the SJC’s Advisory Committee on the Rules of Civil and Appellate Procedure.  Justice Kafker is a trustee of the Dana-Farber Cancer Institute and a member of the American Law Institute.

The Process of His Nomination and Confirmation

As you may recall, earlier this year we reviewed the procedure for the appointment of new judges and explained the first two crucial steps of the process: The screening of applicants for judicial office by the Judicial Nominating Commission and the review of successful candidates by the Joint Bar Committee (JBC). Once Chief Justice Rapoza announced his retirement plans in February, it was clear that finding a suitable replacement would be the first order of business for the JNC, and it was their work that led to Justice Kafker’s nomination by the Governor.

JNC diversity meeting

JNC staff meeting at the BBA on July 8 with affinity bar leaders on strategies to increase diversity of the bench

After his nomination, Justice Kafker was subjected to a final review by the Governor’s Council, which is an elected body consisting of 8 Councilors and the Lieutenant Governor. All judicial nominations are subject to review by the Council — the final step in this multi-layered selection process.

Last week, we attended Justice Kafker’s public confirmation hearing, with the Governor’s Council taking witness testimony in support and, from one individual, in opposition to Kafker’s nomination. They also heard from Justice Kafker himself and asked him questions that would better inform their vote.

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Justice Kafker sits facing the Governor’s Council

Testifying on Kafker’s behalf was a diverse and comprehensive list of witnesses.  Justice Cordy and Appeals Court Justice Elspeth Cypher—who have both worked extensively with Kafker in the past—spoke to Kafker’s professional qualifications, citing his extensive experience and background, his legal, managerial, and collaborative skills, as well as his calm and contemplative  temperament. Council members inquired about Kafker’s leadership qualities, his disciplinary ability, and his “non-trial lawyer” legal background. Amid an exchange of jokes from both sides, Cordy and Cypher made plain with utmost conviction their belief in the abilities of Justice Kafker.

Law clerk Brittany Williams and court officer John Harrison spoke to their positive experiences working for Judge Kafker. Williams described Kafker as a “first-rate supervisor, mentor, and judge” and further emphasized his collaborative and pragmatic nature. Court officer John Harrison began by stating that he didn’t realize Kafker was a judge because “he was a regular, nice person”— which was received humorously by the Council. Harrison also conveyed how all the employees like Justice Kafker because he treats them all with respect. Councilors noted how much they valued this testimony because it demonstrated Kafker’s civility and managerial abilities.

Striking a common theme, Dana-Farber’s general counsel Richard Bosky and Kafker’s longtime friend and law-school classmate David Abelman, further testified in support of Kafker’s collaborative skills. Bosky spoke to Kafker’s diligence in preparation for board meetings, his dedication, and the value of his advice. He also mentioned how Kafker made it his priority to diversify the board. Abelman added that Kafker is fair, passionate, and leads by example.

The only person to speak in opposition to the nomination was Patrick McCabe of the Fatherhood Coalition. While McCabe was quick to praise the justice’s legal writing ability, he raised questions about Kafker’s leadership ability based on child-custody decisions to which the Coalition has objected. McCabe expressed concern over the fact that judges—including Kafker—routinely grant sole custody to one parent without any explanation.

In his address to the Council, Justice Kafker stated that if he were confirmed, his mission would include speeding up the issuance of decisions, creating more specialized expertise for better collaboration, promoting diversity on staff, and pioneering a new system of technology in the courts for improved efficiency. Kafker described himself as responsive and respectful, saying he respects everyone from all branches of government and tries to treat everyone with dignity. The hearing was cordial and flowed smoothly, with little debate, and several Councilors declared their support for Justice Kafker.

The Governor’s Council reconvened yesterday to vote on Justice Kafker’s confirmation, with Lieutenant Governor Karyn Polito presiding. Polito, who takes part in the selection process and facilitate the Governor’s Council review, pledged that only the best candidates will come before the Governor’s Council, after Councilor Jennie Caissie offered congratulations to the Administration and all those involved in the process that produced the newly-sworn-in Chief Justice Kafker.  We echo this sentiment and are pleased to see the JNC’s hard work beginning to bear fruit.  We hope this is only the first of many strong appointments, and encourage everyone with any interest in a judgeship to apply, as the only way to assure we have great judges is to start off with great candidates.

– Jing Li
Summer Intern
Boston Bar Association