Posts Categorized: Juvenile Justice

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Juvenile Justice Through Diversion

A couple of weeks ago, we were pleased to report on our Juvenile Restorative Justice Symposium, a half-day program focused on restorative justice approaches for young offenders.  Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment. Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator.

Today, we are excited to report on our latest program, a July 19 forum on diversion and evidence-based approaches to juvenile justice, hosted by the BBA’s Civil Rights and Civil Liberties Section along with Citizens for Juvenile Justice.  Diverting juveniles is the practice of referring them to various programs that hold them accountable without having the go through the traditional justice system.  The restorative justice approach explained in our prior post is one example of a diversion approach.  The goal is to hold youths accountable without creating a criminal record.

This is especially important in Massachusetts, which does not permit record expungement.  The day before our program, the Boston Globe posted an informative article on this very issue, explaining the challenges individuals with juvenile records can face for many years after their cases are resolved in the justice system.  On July 12, the Senate supported a bill (S2424) by a vote of 31-9 that would, among other reforms, permit expungement of misdemeanor offenses from juvenile records.

Regardless of whether the bill is enacted, the take-away from our forum was clear – diversion, when executed correctly, can be more effective at achieving justice, promoting rehabilitation, and reducing recidivism than traditional justice systems.  The fact that it avoids creation of a record that can hinder a young people for the rest of their lives is only an added benefit.

DSC_0083 croppedSana Fadel Delivers Opening Remarks

Massachusetts is making progress on diversion, but the presenters made clear that there is still a long way to go.  At this point, Sana Fadel, Deputy Director of Citizens for Juvenile Justice, who’s Executive Director Naoka Carey provided closing remarks, explained that diversion programs are established ad hoc and vary by county.  As a result, we have instances of “justice by geography,” in the words of First Justice of the Middlesex Juvenile Court, Jay Blitzman, whereby geography plays a disproportionate role in determining juvenile justice outcomes (check out his July 20 editorial on juvenile record expungement from Commonwealth Magazine).  This also hinders the collection of clear data on effectiveness and outcomes.  Yet while uniformity is still a goal, Fadel reported that things seem to be moving in the right direction, in large part thanks to support from the District Attorneys who have implemented diversion programs in 10 of 11 jurisdictions.

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Judge Blitzman

One of the key points made by multiple panelists was the need for individualized and graduated responses in diversion.  While diversion done well has repeatedly resulted in positive outcomes, diversion done poorly can have the opposite effect.  The key is to require the appropriate level of engagement for the youthful offender.  Too little and the point doesn’t get across, too much and the diversion program can stifle a youth’s positive connections outside the justice system and build resistance and resentment.  However, with the proper amount of diversion programming, youths exhibit a remarkable tendency to learn from their mistakes, make victims whole again, and avoid future criminal behavior.

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Panelists (left to right): Kara Hayes, Vincent Schiraldi, and Judge Blitzman

Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School’s Program in Criminal Justice, spoke about how he worked to increase diversion as New York City’s commissioner of probation.  Through collaboration with the probation department, schools, courts, police, and even big box stores, the leaders of which he convinced to not prosecute all juvenile shoplifters, he was able to divert 41% of juvenile cases, an increase of more than 15%.  A large part of his success appeared to be driven by his tireless efforts toward bringing the community together to embrace diversion as a reasonable justice system alternative and also by tracking and regularly reporting data demonstrating the effectiveness of his work.

Massachusetts is still far from these levels of diversion, but panelists made clear that it is increasingly being accepted as a reasonable alternative to traditional justice.  Kara Hayes, Chief of Community Engagement at the Suffolk County District Attorney’s Office, reported that 25% of juveniles in Suffolk County are currently diverted before being arraigned.  This seems to place us in a similar position as New York City prior to Vincent’s arrival, and the stars appear to be aligning for further increases.  As Kara explained, diversion programs are also beneficial to victims, who often gain more satisfaction and closure than through the justice system, which can be impersonal and leave them feeling cast aside.  As a result, the Suffolk County District Attorney’s office is starting a pilot diversion program in the county that it hopes to have up and running by the start of the school year.  The pilot will include a dedicated program coordinator whose goal is to continue the thoughtful and strategic expansion of diversion to best fulfill the needs of the community.

We are devoted to continuing to provide thought provoking and timely programs and discussions on these sorts of developing areas of justice.  We hope program attendees left feeling informed and empowered to make an impact and we look forward to keeping you apprised of the latest developments in juvenile justice practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Criminal Justice Reform through Juvenile Restorative Justice

It was quite a week here at the Boston Bar Association and we’ve got you covered here in case you missed any of the action.  First is a write-up from our Juvenile Restorative Justice Symposium, a half day program developed by the BBA’s 2015-16 Public Interest Leadership Program (PILP).  Further below is a breakdown of our Benefits of Judicial Diversity program followed by an explanation of a recent Appeals Court decision on reopening settlement agreements in divorce cases.

PILP assembles an annual class of young attorneys with interest in civic engagement and public service who are looking to embrace the leadership role of lawyers in service to their community, their profession, and the Commonwealth.  PILP participants connect with prominent community leaders at meetings and events, learn about the challenges confronting local organizations and take part in efforts to address specific community needs.  After completing the 14-month program, graduates enter a growing network of accomplished alumni who provide mentoring and support to their successors.

This year’s PILP class took an interest in restorative justice, a model used as an approach to criminal justice and community harm that emphasizes repairing the damage done by a criminal event as opposed to just handing down a punishment.  It is a collaborative decision-making process that brings together the offenders, victims, and other affected community members.  It seeks to hold offenders accountable by acknowledging and taking responsibility for their offenses.  Studies have shown that recidivism rates are significantly reduced for participants in restorative justice programs, and the costs are far lower than traditional court processes such as prosecution and incarceration.

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Erin Freeborn

The symposium began with an introduction by Erin Freeborn, Executive Director of Communities for Restorative Justice (C4RJ).  She explained the four principles of restorative justice, a process that has existed in some form or another since the dawn of human society.  They are:

  1. Voluntary participation
  2. Crime, meaning a violation of people and relationships creating a harm that needs to be rectified.
  3. Inclusion and empowerment of those most affected. Part of the process is to find out how to rectify the situation, sometimes with information (an explanation for why the crime was committed) and/or sometimes with material needs.
  4. An understanding that the harm cannot be undone, but that all parties will strive to make things as right as possible to try to put the situation back into balance and collaboratively restore order.

Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment for the offender.

Traditional Approach Restorative Justice Approach
What law was broken?  How will the offender be charged? Who has been hurt?
Who did it? What are the victim’s needs?
What should we do to them?  What will be their punishment/sentence? Who is obligated to meet those needs and how can they do so?

Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator who sets their expectations and lays the ground rules:

  • Everyone takes turns talking and has their chance to speak without interruption.
  • There is no hierarchy, so the facilitator or judge, the victim, and the accused individual are all on equal footing.
  • The circle can include supporters of each party, so in the juvenile context this may mean family members or friends of the offender, as well as the victim.
  • Everyone must take part voluntarily and can pull out at any time and insist on the traditional justice methods.
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Panelists discussing juvenile restorative justice

An extensive panel discussion followed with an examination of current applications of juvenile restorative justice in the Commonwealth.  It was moderated by Northeastern University School of Law Professor Susan Maze-Rothstein and featured five leaders in the restorative and criminal justice field:

The panelists began by considering the appropriateness and effectiveness of restorative justice.  There seemed to be consensus that restorative justice can and often does work better than traditional methods, and that once arraignment takes place and juveniles are given a record, their lives are forever changed, so it is especially important to consider carefully what happens before that step.  Furthermore, restorative justice can serve as a means of reconsidering juvenile justice generally and the need to discuss and change behaviors for youths.  As Commissioner Dolan explained, the traditional response was to simply remove youthful offenders from their situation and hold them in detention for a certain amount of time without providing any help to resolve the incident or underlying issues.  Now, thanks at least in part to the ideas underlying restorative justice, there is a far greater focus on intervening with a holistic approach to solve problems – both to restore balance from the incident leading to the detention and also to resolve underlying issues that prompted the behavior.

While the panelists spoke of their positive experiences with juvenile restorative justice in Massachusetts, they also repeatedly spoke of New Zealand, an international leader in restorative justice, which passed legislation to completely overhaul its juvenile criminal justice system in order to focus its time and resources on restorative justice practices.  As Ziyad Hopkins explained from his own research there, the New Zealand law requires that juvenile offenders take part in a restorative justice program before they can possibly enter the court system, and often provides a means for them to avoid the traditional justice system altogether.  As a result, the number of cases in juvenile court dropped by 80% and juvenile arrest rates did as well.

However, best restorative justice practices are still being developed in Massachusetts.  Panelists discussed the importance of protecting confidentiality in restorative justice discussions, especially should the case end up utilizing traditional justice processes.  Potential misuse of restorative justice discussions to fish for evidence would undermine the entire process.  There were also concerns about whether offenders in restorative justice proceedings need representation by an attorney.  On one hand, legal representation ensures that accused juveniles understand the process and that their rights are protected.  As one panelist put it, all diversion programs inherently implicate a certain level of coercion, and thus it is of the utmost importance that a juvenile and their family have someone to explain the process, options, and minutiae to them.  Furthermore, juveniles have underdeveloped verbal and processing skills and the restorative justice process can be intimidating – an attorney assures the offender’s voice is heard.  On the other hand, it starts to make restorative justice proceedings more similar to traditional justice and may stifle the free and willing exchange of ideas these procedures require in order to be effective.

Currently, restorative justice programs vary greatly by location within the Commonwealth.  They have been implemented piecemeal in certain communities and are yet to catch on in others.  The hope seems to be that they will continue to spread on a grassroots level as more communities recognize their value and importance and that eventually legislation may provide for a uniform and adequately funded statewide system.  There currently is legislation pending (S71/H368, An Act promoting restorative justice practices), which panelists supported, though they noted that it stops short of requiring restorative justice proceedings.

The keynote speaker, First Justice of the Middlesex County Juvenile Court Jay Blitzman, has been a pioneer in the restorative justice field.  He told how his views shifted on restorative justice.  When he first heard of the idea as a “hard-charging defense attorney” he was appalled, feeling like youths were giving up their right to have an attorney stand up for their interests.  It was not until he took part in the “circle” process that he realized that in many ways restorative justice was a richer way for young people to be heard.  He found that taking part in the circle made him a more reflective listener, less judgmental, and better able to facilitate traditional justice proceedings.

He noted the importance of engaging youths through restorative justice.  The circle process gives them a voice, balancing accountability with support.  It assists the community both by solving the problem(s) at hand and by bringing the involved individuals more into the community by encouraging them to take responsibility for their actions, devise a solution, and avoid creating a record.  Justice Blitzman described a common scenario in which a juvenile is involved in a domestic violence case against a family member – typically, a parent or sibling.  These cases rarely go to trial, and are often dismissed, but once the juvenile is arraigned, they have a record which can have many negative consequences for their ability to return to their community, such as limits on housing and jobs.  He suggested that an expungement bill currently before the legislature (S64) could fix part of the problem, but noted that the better solution was to avoid creating the record in the first place through restorative justice proceedings.

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Senator Jamie Eldridge

Senator Jamie Eldridge, a legislative leader on criminal justice issues and Co-Chair of the Harm Reduction and Drug Law Reform Caucus, led a lunch discussion on the future of restorative justice in Massachusetts.  He described the aforementioned bills and their status in the Legislature.  As the sponsor of restorative justice legislation himself, he was hopeful that they might move this session and encouraged attendees to reach out to their legislators to voice their support.  However, he was frank that they faced uphill battles to pass in the final month of this legislative session.  He was optimistic that restorative justice measures might be included in a more comprehensive criminal justice overhaul that he predicted would come next legislative session following the full report of the Council of State Governments, which is conducting an in-depth review of the current criminal justice picture in Massachusetts at the request of Governor Charlie Baker, Speaker of the House Robert DeLeo, Senate President Stanley Rosenberg, and Supreme Judicial Court Chief Justice Ralph Gants.

In all, the symposium was a huge success.  The discussion was lively and informative and we are proud to be at the forefront of considering this issue.  We will, as always, keep you posted on what happens with the relevant legislation this session and look forward to reporting on forthcoming criminal justice reforms.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Helps Achieve Access to Justice for Abused Youths

It has been a momentous last few weeks for our Amicus Committee.  Most recently, they worked on a brief in the Recinos v. Escobar case that ultimately played a major role in achieving a positive outcome facilitating access to justice.  Recinos, which was initially before the Appeals Court, and was taken up sua sponte by the Supreme Judicial Court (SJC) in expedited fashion, deals with the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

In brief, since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there is a small class of individuals – roughly estimated to be about 60 in number — that would otherwise qualify for SIJ status, but may be barred from doing so because the Probate and Family Court will not make a finding because they are aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extends equity jurisdiction to hear these cases, but this is not uniform and judges have no guidance on the matter.

The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Probate and Family Court has equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argues that the pathway to permanent legal residency for immigrant youths requires the state courts to play an essential role and that the Probate and Family Court has equity jurisdiction over these cases.  First, it argues that the Court’s equity jurisdiction is not limited by statute and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argues that children who have been abused, abandoned, or neglected are dependent on the court to make such a finding since they have been mistreated and because such a finding is required to qualify for SIJ status.

It is also important to note that the BBA has previously considered this issue.  In 2014, the BBA Council approved a bill, entitled “An Act relative to abused, abandoned, or neglected immigrant juveniles,” which would have statutorily extended Probate and Family Court jurisdiction to this discrete group of individuals.  The BBA’s Immigration Committee was the force behind this action, and current Co-Chairs Iris Gomez and Prasant Desai, along with former Co-Chair Bill Graves, were a great help in vetting the current case.

Thus, the brief here was a means to the same end, and footnote 15 on pages 43-44 of the brief addresses the interplay of the case and legislation.  It notes that the Legislature is currently considering this session’s refiled versions of those bills (H1418/S740 – currently before the Joint Committee on the Judiciary) and argues that the fact that there are proposed bills pending “is not determinative of whether the court has equity jurisdiction without legislative action.  In light of inconsistent positions held by lower court judges, both routes have been pursued to ensure that these vulnerable youth have the access to the courts they desperately need.”

On Thursday, November 5, the SJC heard oral argument on the case.  The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on case law where the Probate and Family Court exercised equity jurisdiction under very different factual circumstances.  They also referenced our amicus brief.  Justice Hines explains at about the 12 minute mark that she found the brief “extremely helpful” and noted that she felt the brief clarified the dependency issue.  The Justices also asked about the pending legislation, and we hope that the explanation provided in the amicus brief and spelled out above helped them see the necessity of their action in this case.

As it turned out, on Monday, November 9, the SJC released their order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant may have time to apply for SIJ status before her 21st birthday.  We applaud the SJC for their work on this case, first taking it up sua sponte, and then handling it in such an expedited manner in order to assure justice for an individual in need and clarify the law for a small class of dependent youths.  We would also like to thank former BBA President Mary Ryan, and Cynthia Guizzetti, Nutter McClennen & Fish, LLP, and their team for drafting the brief and working with us to facilitate our participation.

In all, the BBA was proud to be involved with this case and couldn’t be more pleased with the outcome.  We look forward to keeping you up to date on all the fine work of our Amicus Committee as they continue to review and consider cases locally and nationally.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

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

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

Spotlight on Juvenile Justice

While juvenile justice issues have played a major role in the legislature in the past year, they have been a part of the BBA’s agenda for decades.  The BBA has long supported bills abolishing juvenile life without parole sentences, as Massachusetts over time became one of the last states permitting these sentences for youths as young as 14.  In early December, the BBA’s Council approved principles drafted by our Criminal Law and Delivery of Legal Services Sections opposing juvenile life without parole sentences.

Then, in late December, there was a sudden breakthrough in the case of Diatchenko vs. District Attorney for the District & Others, in which the SJC held that juvenile life without parole sentences were unconstitutional following the US Supreme Court holding in Miller v. Alabama that juvenile life without parole sentences violate the 8th Amendment as “cruel and unusual” punishments.   As a result, roughly 63 inmates became parole eligible for the first time.  However, the Diatchenko case left it up to the legislature to determine how to craft sentences for juveniles convicted of first degree murder, asking only that they be given a “meaningful opportunity to be considered for parole suitability.”

From that point on, the legislature has grappled with how to handle this situation.  A number of bills emerged in the first few months of 2013.  When the Joint Committee on the Judiciary held a hearing on juvenile justice issues, we were there.  There was plenty of debate at the hearing on a multitude of bills calling for anywhere from 10 to 35 years of jail time before juveniles convicted of first degree murder could be eligible for parole.  The bills included many provisions on parole considerations, but listening to the testimony, the following issues came to the fore for legislative consideration:

  • Fairness – Legislators and panelists alike raised fairness considerations for victims and their families, society generally and specific communities, as well as the defendant.
  • Confidence in the justice system – Those advocating for longer parole eligibility terms touted their confidence in the justice system, stating that only juveniles who committed the most heinous crimes were sentenced to life and thus merited a longer time before parole eligibility.  Those advocating for shorter parole eligibility terms expressed confidence in the parole board’s ability to determine whether a person was adequately rehabilitated before potential release.  They stressed that parole eligibility did not equate to release.
  • Potential for rehabilitation – Testifiers advocating for shorter parole eligibility terms cautioned against the mere warehousing of convicts and expressed concern that juveniles sentenced to life with long periods without parole eligibility would suffer due to lack of program and rehabilitative opportunities (priority is given to those closer to potential release) and the challenge of staying in touch with family and friends for such an extended period of time, a parole board consideration.

Now, a couple of months later, the legislature is primed to address all of these concerns.  The House passed a juvenile justice bill, H4184, on June 18 by a vote of 127-16.  The bill called for parole eligibility for juveniles convicted of first degree murder in 20-25 years, specifying that those convicted of first degree murders that were premeditated or committed with extreme atrocity or cruelty would be parole eligible after 25-30 years.  A few weeks later on July 8, the Senate passed its own juvenile justice bill, S2246, by a vote of 37-2.  The Senate version granted parole eligibility in 20-30 years, specifying that a juvenile convicted of first degree murder committed with extreme atrocity or cruelty would only be parole eligible after 30 years.

A Conference Committee consisting of Representatives Christopher MarkeyGarrett Bradley, and Bradford Hill and Senators William BrownsbergerJennifer Flanagan, and Bruce Tarr then drafted a consensus bill, H4307.  This version calls for general parole eligibility for juveniles convicted of first degree murder in 20-30 years.  It requires 30 years of jail time for those convicted of murders of extreme atrocity or cruelty and 25-30 years for juveniles convicted of first degree murder with deliberate premeditation and malice aforethought.

Here is how the three bills break down:

juvenile justice chart

The consensus bill also creates a commission to study and determine the usefulness and practicality of using a developmental evaluation process for juvenile first degree murder cases.  The goal of the evaluation process would be to determine the developmental progress and abilities of the juvenile offender at the time of sentencing and parole eligibility.  The commission is tasked with establishing factors to analyze in determining the developmental progress of a juvenile offender.

The consensus bill will now go to each house of the legislature for their final consideration.  We will continue to monitor this and all the other bills of interest to our members in these final weeks of the legislative session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association