Posts Categorized: Prisons

Discussing the Death Penalty

As you likely know, the BBA has long opposed the death penalty, for more than 40 years to be exact.  Our reasoning is based on sound and practical principles – that the death penalty simply too fraught with peril, too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system.  We recently reaffirmed this stance and extended it to the federal death penalty with our 2013 report, The BBA and the Death Penalty and now we are proud to announce the release of the BBA’s first ever podcast, which takes the discussion of this position to the next level. With conviced murderer Gary Lee Sampson currently facing the death penalty at the Moakley Courthouse, the Co-Chairs of the BBA’s Death Penalty Working Group that produced that report, Martin Murphy (Foley Hoag) and retired Superior Court Judge Margaret Hinkle (now at JAMS), discuss their experiences with the death penalty and on the Working Group, and BBA President Carol Starkey shares her thoughts.

We have advocated against the death penalty through public education, such as in the aforementioned report and our 2015 press release urging the Department of Justice to seek a life sentence without parole instead of the death penalty for Boston marathon bomber Dzhokhar Tsarnaev.  We have made the same point when the Legislature has considered reinstating the death penalty and in amicus briefs including:

  • 1975 –Commonwealth v. O’Neal – Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The Court rejected the state’s unconstitutional mandatory death-penalty provision.
  • 1984 –Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:

Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions.  It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.

The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence.  In addition, prosecutors and defense counsel alike face unique community pressures.

Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.

The SJC invalidated the constitutional amendment and statutes, in line with our brief, finding that they violated Article 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.

  • 2005 –S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).

The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury.  It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence.  Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty.  It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.

The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.

Despite a general trend away from capital punishment recently, in the last few days, the death penalty has again made headlines.  Georgia executed its U.S. leading ninth inmate of the year.  The Georgia case described in the article suffers from some of the hallmarks we’ve highlighted in our opposition.  For example, the crime took place in March 1990, but the defendant was not sentenced to death until his second trial eleven years later.  Even more concerning, the case raises major due process issues:

[Defendant William Sallie’s] lawyers argued that he should, once again, be granted a new trial because a woman who ultimately ended up on the jury during the second trial lied during jury selection and failed to disclose her own history of domestic violence, messy divorces and child custody fights — traumatic events that they said were “bizarrely similar” to Sallie’s case.

But no court ever properly considered the alleged juror bias, his lawyers argued in a recent legal challenge, because the issue wasn’t discovered until more than a decade later, and courts had ruled that Sallie’s petitions raising that evidence were procedurally barred because he missed a filing deadline by eight days at a time when he didn’t have a lawyer.

The defense team also made those arguments in a clemency petition to the Georgia Board of Pardons and Paroles, urging it to act as a “fail safe” against a miscarriage of justice. But the board, the only authority in Georgia with power to commute a death sentence, declined to spare Sallie’s life after a clemency hearing Monday.

Earlier in the week, Florida appealed the state Supreme Court’s interpretation of a US Supreme Court decision finding unconstitutional the state’s system of allowing judges, instead of juries, to find the facts needed for a death sentence.  The US Supreme Court held that this gave judges too much power, violating the Sixth Amendment right to trial by jury.  From the Miami Herald:

At the time of the January [US Supreme Court] ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”

Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

The Florida Supreme Court then found the new law unconstitutional, because it did not require unanimity in imposing the death penalty (something Judge Hinkle experienced firsthand in a Florida death penalty case and discusses in the podcast).  The state’s attorney general is appealing the ruling to the US Supreme Court for discretionary review.

As always, we’ll be on the lookout for latest developments in capital punishment and continue our advocacy in opposition.  We hope you enjoy the podcast and we’ll keep you posted on the forthcoming second episode which will cover our role in a major state scandal…

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Welcome Back SJC

 

The start of our program year coincides with the start of the new session of the Supreme Judicial Court, which runs until May 2017.  The Justices held their first oral argument on September 6, when Chief Justice Ralph Gants welcomed three recently confirmed justices to the bench for the first time – Frank Gaziano, David Lowy, and Kimberly Budd who replace retired Justices Frank Spina, Robert Cordy, and Fernande Duffly.  They join returning justices Barbara Lenk, Margot Botsford, and Geraldine Hines, the latter two of whom face mandatory retirement in 2017.

Here are some cases we’ll be keeping a close eye on this session:

Mandatory Minimum Sentencing

The first case of interest, Commonwealth v. Laltaprasad (SJC-11970), was actually argued last session, but the Court waived its 130-day rule, which requires it to issue a written opinion within 130 days after argument (or submission without argument), and still has not issued its holding.  The case revolves around Superior Court Judge Shannon Frison’s departure from the mandatory minimum sentence for drug crimes of which the defendant was convicted.  On July 23, 2015, the defendant was convicted of possession with intent to distribute heroin, subsequent offense, under G.L. 94C §32(b), and possession with intent to distribute cocaine, subsequent offense, under G.L. 94C, §32A(d).  At sentencing, the Commonwealth recommended 3.5 to 5 years in state prison.  The court departed from the mandatory minimum of 3.5 years in state prison required by G.L. 94C, §32A(d), and G.L. 94C §32(b), and instead imposed a sentence of 2.5 years in the house of correction, explaining in its memorandum of sentence departure:

(1) The defendant does not have a prior conviction for drug trafficking at seriousness levels 7 or 8; and

(2) The facts and circumstances surrounding this matter warrant a lesser sentence.  Specifically, the defendant was arrested with less than 1 gram of the controlled substances.  Further, the defendant was severely injured when the other individual shot a firearm at him.  He suffered 11 gunshot wounds and endured 21 surgeries prior to trial.  Given both the relatively small amount of contraband involved in this arrest and the extreme medical condition of the defendant, the Court will depart downward and impose a sentence of 2.5 years in the House of Correction.

The Commonwealth appealed this decision, arguing that the judge had no discretion to depart from the mandatory minimum sentence because the Legislature has exclusive power to prescribe sentencing penalties, and that separation of powers principles preclude a judge from disregarding the Legislature’s directive.  The Commonwealth also argued that sentencing guidelines recommended pursuant to G.L. c. 211E, which permit a judge to depart from a mandatory minimum sentence, have never been enacted by the Legislature, and thus could not be applied in this case.

In late December, the SJC solicited amicus briefs on “Whether a sentencing judge has discretion to depart from the mandatory minimum terms specified in G. L. c. 94C, § 32 (b), and § 32A (d), under the sentencing guidelines recommended pursuant to G. L. c. 211E or otherwise.”  A large number of organizations submitted amicus briefs making various arguments opposing mandatory minimum sentences, including separation of powers in government, the need for judicial discretion, individualized  and proportional sentencing, and the disparate impact of mandatory minimum drug laws on minority populations.  They also explained that mandatory minimums did not adequately serve the primary purposes of sentencing and argued for safety valves, similar to those in the Federal system and a number of other states, that permit judges to depart from mandatory minimum sentencing schemes under certain circumstances.

Until the decision is issued, it remains unclear why the SJC chose to take this case.  On one hand, it seems clear that the lower-court judge did not follow the law in her sentencing memorandum.  Or did the SJC see here an opportunity to make changes to the current state of mandatory minimum sentencing in the Commonwealth?  From a policy perspective, the BBA has long opposed mandatory minimum sentencing, so we are particularly interested to see if the Court uses this case as a vehicle to move the ball on this issue.

Drug Lab Scandal Solutions

Bridgeman v. District Attorney (SJC-12157) is the latest in the string of cases related to the Annie Dookhan/Hinton Drug Lab scandal, in which convicted chemist Annie Dookhan tainted tens of thousands of drug samples submitted for analysis in criminal cases.  This story broke publicly around 2012, and since then, the Court, CPCS, and the seven District Attorneys (DAs) with affected cases have all struggled with how to handle the voluminous issues that arose.  First, there was the issue of case identification.  Attorney David Meier was assigned the task of gathering information from the drug lab records.  He found that roughly 40,000 samples were affected by Dookhan’s actions.  Over time, that list has been translated into a list of more than 20,000 individuals whose cases remain in limbo.  While the SJC has chipped away at this case slightly, such as through the hard work of a number of retired judges, including BBA Council member, Judge Margaret Hinkle, conducting special drug lab hearings, the remaining numbers are still considerable.

In 2014, the SJC held in Commonwealth v. Scott (SJC-11465) that every person convicted with Annie Dookhan serving as either the primary or secondary chemist was entitled to a presumption of government misconduct tainting their case, meaning that they wouldn’t have to prove that Dookhan acted illicitly in their specific cases.  In their brief for this case, CPCS recommended a “global remedy” to presumptively vacate all convictions of the impacted defendants, with exceptions in a small number of certain cases.

The current case, Bridgeman has been addressed in pieces.  In May 2015, the SJC issued its decision on one issue – whether Dookhan defendants who wanted to withdraw guilty pleas could face additional sanctions.  The Court created an “exposure gap” to prevent chilling of defendants bringing their cases, such that defendants seeking post-conviction relief could not be convicted of more serious offenses or face harsher sentences than previously imposed.  The remaining issue to be addressed in the still pending Bridgeman case (SJC-12157) is whether there has been unconstitutional delay in dealing with the class of cases impacted by the Dookhan scandal, given that this case was filed in 2015, nearly 15 years after the misconduct began, and four years from the public revelation.

We are very interested to see how the Court deals with this case.  Will they adopt a “global solution”?  Or will they opt to handle the more than 20,000 cases on a case-by-case basis?  If the latter, how will the justice system (courts, appointed counsel, DAs, …) handle a potentially unwieldy number of these appeals by Dookhan defendants?  How will impacted defendants be given notice of this outcome and of their rights?  This case seems to carry even greater potential significance given the revelations of evidence issues in the Sonia Farak drug lab scandal and, most recently, the Braintree Police Department.

Bail Considerations

The third case on our radar is Commonwealth v. Wagle (SJ-2016-0334), on whether it is a violation of the state and federal constitutional guarantees of equal protection and due process of law to hold  an impoverished defendant in jail before trial because she cannot afford money bail (see the Petition for Relief here).  The case is the latest in a series of cases (see, e.g. Commonwealth v. Henry) and discussions on costs and fees in the criminal justice system generally.

In this case, a Single Justice (Hines) issued an interim order, decreasing the bail amount and granting leave to her attorneys to file a revised petition in 30 days (by September 24, 2016), making arguments for “systemic relief” for the class of similarly situated individuals.  Justice Hines requested that the amended petition focus “specifically on the terms of the Massachusetts bail statute and how it is being applied by Massachusetts judges, and why the defendant claims that our statute and its application are unconstitutional.”  After reading this petition and a response from the Commonwealth, and permitting both sides to be heard on the question of reservation and reporting, the Single Justice will consider whether this case should go before the full panel of the SJC.

We’ll be keeping a close eye on this case and the discussion of fees in the criminal justice system generally.  It is important to remember that the courts are only one player here, as we are also looking forward to seeing the criminal justice reform proposals in the Legislature emerging as a result of the forthcoming Council of State Governments report.

Those are just three of a number of cases we are watching, and we can’t wait to see what other issues the SJC takes on this session, as well as what impact, if any, the changing personnel on the Court will have.  We look forward to following up with you on these cases of interest and telling you about more throughout this SJC session.

– 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.

DSC_0087 Cropped

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

Senator Brownsberger Talks Criminal Justice Reform at Council Meeting

Today we begin the final countdown to Walk to the Hill 2016 for civil legal aid, which is happening exactly one week from the date of posting, on January 28, from 11:30-12:30 (on-site registration begins at 11:00 am) at the Great Hall in the State House.  So we were very excited to welcome to this week’s BBA Council meeting a key legislator and long-time supporter of legal-aid funding, Senate Chair of the Joint Committee on the Judiciary, William Brownsberger.  Senator Brownsberger began with some background on his legal career.  He spoke of his tenure in the Attorney General’s office where he worked on the Public Protection Bureau and as Asset Forfeiture Chief in the Narcotics and Special Investigations Division.  It was there that he first became interested in the issues of addiction, and began consulting and teaching on criminal justice and addiction issues, which he soon turned to full-time.
IMG_7943It wasn’t long, however, before he became sick of talking about people with addictions, and wanted to talk with them, so he began practicing in drug court.  He explained his philosophy that criminal lawyers play a “sacred role” in court so that every defendant knows they “got a fair shake.”  He described how this experience changed his thinking about criminal justice and supervision, as he witnessed that jail time, followed by over-supervision after release, could “crush people” and keep them from reaching their potential as productive members of society.

The Senator then moved on to discussing his views on the need for criminal justice reform, which have been formed by both his personal experiences and his study of the larger issue.  For example, he shared this stunning statistic: 40 years ago the prison population in Massachusetts state prisons was under 2,000 and had been holding fairly steady for decades.  But between 1975 and the early 1990s, that population increased five-fold to around 10,000 individuals, where the level has more or less remained for the last twenty years.  Senator Brownsberger said when he looked into these statistics alongside legislative reforms made during that time period, he could not entirely link the massive prison population increase to major legislative changes.  He concluded that the increase was actually the result of a general societal “tough on crime” push that affected not only legislators but also police, district attorneys, judges, and the public as a whole.  The question now is, can we dial that back? And if so, how?
IMG_7950Furthermore, if it’s the case that the current incarceration problem stems from a larger systemic shift, it is likely that the Legislature cannot solve it alone.  While the Senator expressed some frustration that major reforms have been delayed in the recent past to await the results of outside studies, he was excited about the recent study on Justice Reinvestment being undertaken in Massachusetts by Pew and the Council of State Governments — and by the potential their work holds for bringing the state’s leaders together on criminal justice reform.  He hopes that the state will pass some limited reform bills this session (what he termed hitting “singles and doubles”, such as easing the burden of post-release driver-license suspensions for drug offenders) and then make a push for major, comprehensive reforms in 2017.

While mandatory minimum sentences – which the BBA has long opposed — are certainly a part of the problem, the Senator explained that he felt their impact was sometimes overstated, as they are responsible for less than 20% of the inmate population at both prisons and houses of correction.  He hopes to:

  • increase prisoners’ ability to earn “good time” in order to ultimately shorten their sentences
  • re-classify certain inmates into lower-security facilities as their release nears, in order to better prepare them for re-entry, and
  • rework probation and parole by reducing or eliminating fees and addressing the problem of redundant dual supervision of one ex-offender by both agencies.

These and other steps are aimed at revamping the justice system to make it more supportive of successful re-entry.

We thank the Senator for his insights into the criminal justice system and look forward to working with him on future reforms.  In the meantime, we hope that you will join us at Walk to the Hill for Civil Legal Aid on January 28 to hear speeches by BBA President Lisa Arrowood, MBA President Bob Harnais, and state government leaders and then meet with your State Senator and Representative.  Tell them how much civil legal aid funding means to you, voice your support for appropriating a much-needed $27 million to the Massachusetts Legal Assistance Corporation (MLAC – line item 0321-1600), and start a dialogue that you can continue throughout the budget process — and into the future on issues of interest to you, such as the criminal justice reforms Senator Brownsberger and others are working on.

– 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

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

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.

EOPSS hearing picture2

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