A Retrospective – The BBA and Busing, 40 Years Later

As another school year begins, we pause to consider a tumultuous period in Boston history.  Forty years ago this week, the eyes of the nation were on the Boston public school system as it implemented an extremely controversial desegregation and busing plan. Locals who lived through those days will likely never forget them, but many of us are too young to remember.  The anniversary of this time has once again brought the issue to public light.  The Boston Globe’s articles and brief documentary and WBUR’s oral history vividly evoke the tenor and events of those not-so-distant days, when students were bused to different areas of the city to fulfill the goals of the Court-approved desegregation plan.

The BBA played a prominent leadership role in helping the city understand the legal principles at play in this episode.  In 1974, following Judge Arthur Garrity’s decision in Morgan v. Hennigan, then BBA President and 2014 Lifetime Achievement Honoree, Ed Barshak, appointed a Committee on School Desegregation.  The Committee’s report, “Desegregation: The Boston Orders and Their Origin,” explained the power of the federal court, discussed the content of the opinion and desegregation orders, and provided a list of various resources available for further explanation.

Some key points from our Committee Report:

The District Court’s power is traced to Article III of the U.S. Constitution, which gives Congress the power to create federal courts and provides the President with the power to appoint federal judges for life-long terms.  Federal courts have the power to resolve disputes and order appropriate remedies, but are also limited in many ways including in their jurisdiction to hear cases and their enforcement powers.

The Equal Protection Clause prohibits states from denying equal protection of the law to any person, meaning that no government organization in any state can pass a law or regulation which arbitrarily denies state citizens benefits given to others.  By 1974, the U.S. Supreme Court already dealt with a number of cases on public school segregation, most famously Brown v. Board of Education, and established precedent that intentional segregation by a school board, whether or not state law specifically required it, violated the Equal Protection Clause.

The power of the federal court and importance of the Equal Protection Clause play important roles as well in Morgan v. Hennigan, the Boston school desegregation case.  The complaint alleged that the Boston School Committee intentionally brought about and maintained racial segregation through many of its policies.  The School Committee agreed that schools were in fact segregated, but argued that this was due to residential segregation and the policy of schools serving local neighborhoods.  When Judge W. Arthur Garrity examined the facts at hand, he made the following findings:

  1. Mostly white schools were badly overcrowded while mostly black schools had excess space, yet the School Committee did not transfer students to even out the numbers.
  2. The School Committee intentionally refused to change existing districts to make schools more racially even.
  3. The school system “feeder” program had the intended and actual consequences of pushing students from predominantly black or white elementary and junior high schools into high schools that were homogenous along corresponding racial lines.
  4. The allegedly open transfer policy was actually used as an aid to white students to transfer out of predominantly black schools.
  5. Teachers were also segregated by race.
  6. Three examination schools were predominantly white, while two trade schools were predominantly black.

Ultimately, Judge Garrity determined that the School Committee intentionally and purposefully created and maintained a segregated school system in Boston.  The Court’s remedy was the installation of a desegregation plan which included the aforementioned busing arrangement.

When the plan was initially met with protests and a boycott by some white students, the Governor Francis Sargent stepped in to enforce the court’s remedy, bringing in the State Police and putting the National Guard on alert.  It would take the city some time to devise further phases of the desegregation plan, and far longer for the public to come to terms with them, but the BBA recognized right away that Judge Garrity’s decision was changing the city for good.  In fact, the BBA honored him with the Public Service Award in 1975, just one year after the controversial decision.

The BBA is proud of our long history of advancing diversity and inclusion, not just in the legal profession, but in the community at large.  This commitment remains a cornerstone of the BBA mission, as does our involvement with Boston’s public schools, which continues today through public service initiatives such as the BBA Summer Jobs Program and M. Ellen Carpenter Financial Literacy Program.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice Prevails, At Long Last, in North Carolina Death-Penalty Case

Thanks in large part to the hard work of attorneys from BBA sponsor firm Wilmer Cutler Pickering Hale and Dorr, this week a North Carolina judge exonerated and ordered the release of half-brothers Henry Lee McCollum and Leon Brown based on DNA evidence.  This outcome reaffirms the BBA’s four-decade-old position opposing capital punishment and highlights the importance of recent work by the BBA on the death penalty and on wrongful convictions. 

McCollum and Brown spent more than 30 years in prison after being pressured into false confessions admitting to the rape and brutal murder of 11-year-old Sabrina Buie when they were 19 and 15 years old, respectively.  Richard Johnston of WilmerHale represented them in their successful appeal, alongside colleagues Jared Cohen, Andrew Dulberg and Steven Finizio. 

The judicial process that landed the brothers in prison – and McCollum on death row – showcased a litany of systemic problems that the BBA has been discussing for some time and made subjects of recent reports, including a failure by the prosecution to turn over required evidence that should have led investigators to a potential suspect who lived near the place where the victim was found, had a history of sexual assaults, and was convicted of a remarkably similar murder that occurred weeks later.

The brothers, both mentally-disabled, confessed after lengthy interrogations that took place in the absence of any lawyer or parent and with no audio or video recording – something a BBA task force on wrongful convictions warned against.  But it was long-overdue testing of DNA evidence that ultimately cleared the two men and pointed to the overlooked suspect – a result made more likely in Massachusetts under a 2012 law, which the BBA fought for, expanding access to forensic testing.

The New York Times, featured the case on the front page, following up with an editorial stating that it “provides a textbook example of so much that is broken in the American justice system” and offers “further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.”  The BBA’s Death Penalty Working Group released a report in December 2013 compiling that evidence, and extending our opposition to the death penalty to include federal cases, and updating our reasoning for this stance.  The BBA’s opposition to capital punishment stems from three main points:

1. The inevitability of errors in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants.

In the 40 years since the BBA filed its first death penalty amicus brief, more than 143 wrongfully convicted defendants on death row have been exonerated.  This figure is unsurprising given the findings of the 2009 BBA Task Force to Prevent Wrongful Convictions, whose report, “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts,” identifies the most common sources of wrongful convictions and makes many specific recommendations concerning the way police should conduct identification procedures, interviews of witnesses and suspects, post-conviction relief and forensic science, and standards of discovery, trial practice, and defense.

2. In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities.

The Death Penalty Working Group found that it is sought by prosecutors, and applied by juries, far more often when the victims are white than when they are members of minority groups.  Defendants in death penalty cases are more likely to be members of minority groups than white, as were the two wrongfully-convicted brothers from North Carolina.

3. 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.

Death penalty cases take longer and cost more than other forms of justice.  The median cost of defending a federal death-eligible case is eight times higher if the Department of Justice seeks the death penalty.  Although total costs are hard to estimate, a study based on a single 2013 death penalty case pegged the total expense at $10 million — considerably greater than in non-capital cases, even factoring in the cost of incarceration for life.  Capital punishment simply puts a remarkably high economic cost on society.

Thus, the BBA comes to its position through a close analysis of the basic facts: Error is inevitable, the death penalty is exorbitantly expensive for society, and racial and ethnic minorities bear the brunt of its effects.  We are pleased that justice was served for Lee McCollum and Leon Brown — albeit 30 years late — but it underscores our opposition to the death penalty and our commitment to “getting it right” in the first instance. 

The man linked to the Buie killing by DNA evidence is currently serving life in prison (commuted from a death sentence, as it happens) for another crime.  But as the BBA’s task force stated in its report on improving the accuracy and reliability of the justice system, “For every innocent defendant convicted of a crime he did not commit, a truly guilty perpetrator remains free to commit other crimes, and the expectation of the victim and the public that justice will be done goes unrealized.”

- Michael Avitzur
Government Relations Director
Boston Bar Association

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Summer Summaries

As we at the BBA prepare to usher in a new program year and new president, Julia Huston, we’ve been keeping an eye on some recent legal events that may be of interest.

Civil Legal Aid

New American Bar Association (ABA) President William Hubbard announced that he will use his post to find ways to provide legal services to low-income individuals.  This is particularly timely for us given the impending release of the report authored by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.   The Task Force’s report is expected to be released in September, and its members will be honored at this year’s Annual Meeting on September 12. 

Hubbard’s initiative is already underway with a Commission on the Future of Legal Services approved in June by the ABA Board of Governors.  In addition, in late spring of 2015, the ABA is planning to host a national conference on legal services delivery.  The ABA seeks to identify the most innovative practices from across the country with a focus on the use of new technology, especially in the field of communications, where a recent Legal Services Corporation study found that an overwhelming majority of individuals below the poverty level have cell phones, and nearly half have smartphones.

The ABA is also committed to continuing the Legal Access Job Corps program started by its former president, James R. Silkenat.  This program seeks to bring together two communities – those in need of legal aid and the growing ranks of unemployed and underemployed lawyers.  This summer the Legal Access Job Corps gave out “catalyst awards” to legal services offices, bar associations, and law schools to help fund projects employing new lawyers in innovative ways to address the legal needs of poor or moderate-income people.

We applaud the work of the ABA on this issue, and look forward to the findings of the conference.  Keep an eye out for our Task Force Report coming soon.

Marriage Equality

A few weeks ago we wrote about a Fourth Circuit case striking down Virginia’s ban on same-sex marriage which appears bound for the Supreme Court.  In addition we noted a positive trend, a string of state and federal rulings supporting same-sex marriage over the last 14 months following the Supreme Court ruling’s ruling in the Windsor and Perry cases.  The BBA has long been a supporter of marriage equality, having filed amicus briefs in its defense in 2002, 2005, 2011, and for two cases in 2013.

It looks like another Circuit is following this trend.  This time the good news comes from the 7th Circuit Court of Appeals where a three-judge panel struck down same-sex marriage bans in both Wisconsin and Indiana.  This was especially noteworthy due to the 7th Circuit’s traditionally conservative tone and the judges’ challenging questions to attorneys at oral argument, including what benefits society gained from barring same-sex marriages and whether children of same-sex couples might suffer psychologically if their parents had to try to explain why they were not allowed to be married while other children they interacted with had legally married parents of opposite sexes.

We are tracking these cases and keeping an eye on the U.S. Supreme Court docket to see whether they will weigh in next session.

From the SJC

On Monday, the Massachusetts Supreme Judicial Court (SJC) ruled, in the case of Commonwealth v. Jose A. Guzman, that a law requiring GPS monitoring during probation for those convicted of certain “noncontact” sex offenses involving a child did not give a judge discretion on whether to impose GPS monitoring. 

In that case, a Superior Court judge had declined to include GPS monitoring as a condition of probation, despite the fact that the defendant plead guilty to a sex offense involving a child, an offense requiring GPS monitoring as a condition of probation by law.  The defendant claimed that the law violated procedural due process rights and protections against unreasonable search and seizure by requiring the same probationary measure for any sex offense involving a child, from pornography (as was at issue in this case) to sexual assault.  The SJC rejected these arguments, finding that the law was Constitutional and the Superior Court judge erred.

We are looking forward to seeing many of you in the coming weeks here at 16 Beacon and at the Westin Copley for Annual Meeting while we get back into the swing of things for the 2014-15 program year.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Brockton, Bill, and Budget: Intra-Governmental Efforts to Eliminate Substance Abuse

This past year, we witnessed a proliferation of substance abuse emergencies in our communities, prompting the Governor to declare a public health emergency.  At the same time, our understanding of best treatment both scientifically and criminally continues to evolve.  Thus, we are pleased to see the response of our government, which has come together across branches and politics to make some major changes in an attempt to address the problem.   Through the budget, legislation, and judicial innovation, the Commonwealth is taking on this issue in new and creative ways.

We noted in our budget updates that the Trial Court’s budget request included a $2.7 million “module” for the creation of specialty courts.  Although the final budget was about $3 million below the Trial Court’s $615 million request, it specifically included funding earmarked for this project.  In fact, this module was provided for in each step of the budget process across the Executive and Legislative branches – first by the Governor, next by the House and Senate, and finally in the Conference Committee budget signed by the Governor.  The Senate even called for an additional $300,000 in funding beyond the Trial Court’s request to help fund continuing examination and analysis of specialty court functioning.

At the end of formal session, the legislature passed its own measures to combat drug abuse in the bill S2142, An Act to increase opportunities for long-term substance abuse recovery, which Governor Patrick signed into law on August 6th.  The bill is intended to prevent drug abuse by increasing oversight on prescriptions while also making treatment easier to obtain and afford.  Most notably, the bill includes provisions requiring insurance providers to cover deterrent drug products and substance abuse treatment in some cases.  Other parts of the bill increase oversight and monitoring of patients prescribed certain drugs and require coroners to report opioid-related deaths to the Department of Public Health (DPH) and the U.S. Food and Drug Administration (FDA).  In addition, the bill gives DPH new authority to monitor potentially dangerous substances.  Although the bill costs $20 million and caused some concerns for insurance companies, it passed with bipartisan support and has been touted as a potential model for federal legislation.

Around the same time the bill was passed, the Trial Court announced its plans to open a new specialty drug court in Brockton, funded by the $2.7 module appropriated by the legislature.  BBA President Paul T. Dacier examined the specialty court system and drug courts in particular this year.  In his blog, he notes that the specialty court model achieved remarkable results nationwide, reducing recidivism and helping people recover from addiction.  Specialty Court sessions feature judges trained and peer-reviewed in handling certain issues.  The Courts focus on rehabilitative treatment programs and probation, sometimes lasting up to two years.  This approach has resulted in seventy-five percent of rehabilitation program graduates remaining arrest-free two years out of the program – quite an achievement, especially considering that Specialty Courts handle the cases of those individuals considered most at risk of recidivism.

While the issue of substance abuse is extremely complex and constantly changing, we were pleased to see – from the budget, to a bill, to the execution of specialty courts – that each branch came together in an attempt to solve a problem and improve the lives of people in Massachusetts. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Are Prosecutors and Public Defenders Paid Enough?

After a back-and-forth with the Legislature during the Fiscal Year 2015 budget debate, Governor Deval Patrick issued an executive order to create a new commission that will study the question of appropriate salaries for prosecutors and public defenders. 

Earlier this year, the Legislature sent the Governor a budget that increased District Attorney (DA) salaries by 15%, from $148,843 to $171,561.  The Chief Counsel for the Committee for Public Counsel Services (CPCS), whose pay is statutorily tied to that of the DA’s, would get the same raise.  The budget did not change salaries for Assistant DAs (ADAs), though it included a statewide pool of $500,000 to be used, largely at the DAs’ discretion, toward raises intended to help retain ADAs with more than 3 years of experience – a group that numbers in the hundreds.

Governor Patrick expressed his support for this $22,718 pay increase for DAs – their first in 7 years – but returned the provision with a proposed amendment that would also create a commission to study the salaries of ADAs and CPCS staff attorneys.  The Governor wrote, “These dedicated public servants deserve a salary reflective of their indispensable contribution to the Commonwealth and the fair and equitable dispensation of justice in our courts.”

The Legislature rejected this amendment, overriding the Governor and enacting the pay raise with no commission.  But the Governor created one anyway through an executive order and tasked it with comparing salary structures within DA offices and CPCS to those in other states, as well as to salaries of attorneys in law firms and other government offices.   In addition, the commission will look into the possibility of cost-of-living increases and try to put a figure on how much money the state will need “to address inadequate salaries”.

The “pathetic” pay for new ADAs was the subject of an editorial in the Boston Globe earlier this year, and salaries for incoming CPCS defenders are only marginally higher.  The Globe pointed out that most law-school graduates in Massachusetts must weigh heavy student debt and the high cost of housing in making job decisions, and that low salaries lead to unnecessary turnover.  The Commission will undoubtedly find – as the Massachusetts Bar Association’s task force on this subject recently did – that pay scales for these critical jobs are well below those in surrounding states. 

The Governor’s commission must report its findings and recommendations by December 15, 2014, and we will continue to monitor its progress until then.  The BBA has long supported efforts to advance the cause of justice, and attracting and retaining skilled prosecutors and defenders can be an important part of that equation – so long as the funds don’t come at the expense of other essential components of the justice system.  Incoming BBA Vice President Carol Starkey will represent the BBA on the 15-member commission, and we look forward to reviewing its report.

……

Finally, a personal note: This is my first Issue Spot entry, having started last week as the BBA’s Government Relations Director.  I look forward to using this space to keep you updated on matters of interest to the BBA, and I hope to have the opportunity to work with as many of you as possible.  Please don’t hesitate to get in touch with me if you have any questions or concerns.

- Michael Avitzur
Government Relations Director
Boston Bar Association

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Summer SCOTUS Update

The latest session of the Supreme Court may have ended several weeks ago, but there have still been some recent developments on cases of BBA interest, namely marriage equality and the use of affirmative-action measures in higher education. 

The BBA has long been a supporter of marriage equality both in the Commonwealth and federally, filing amicus briefs in its defense in 2002, 2005, 2011, and most recently in 2013 in the Supreme Court cases U.S. v. Windsor and Hollingsworth v. Perry.  Windsor challenged Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman, while Perry challenged California’s Proposition 8, a gay-marriage ban approved by a 2008 ballot initiative.  Our brief for these two cases argued that sexual-orientation classifications warrant heightened scrutiny under the Equal Protection Clause.  We were pleased that the Supreme Court’s ruling affirmed that all married couples deserve equal treatment from the federal government.

The Supreme Court’s opinion may be sought again, this time in a case from the Fourth Circuit striking down Virginia’s ban on same-sex marriage as well as a similar case from Utah.  The Virginia case concerns both a state’s power to forbid same-sex marriage within its boundaries and its power to decide whether to recognize same-sex marriages legally performed in other states.  These are just two cases in what has been, by one count, a string of 35 consecutive state and federal rulings on the side of same-sex marriage in the 14 months following the Supreme Court ruling.

It appears likely that the local Virginia county clerk will file a petition for SCOTUS review of the case by the end of October.  The next Supreme Court term begins on October 6, and while the Court has complete discretion on whether to take up this or any other case, it seems inevitable that the justices will weigh in again, probably sooner rather than later, on this fast-moving issue.

Another case of BBA interest, Fisher v. University of Texas, continues to evolve.  The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, a position that inspired amicus briefs in the 2003 case, Grutter v. Bollinger, and 2012’s Fisher v. University of Texas.  In each case, the BBA’s amicus briefs argued that race-conscious admission policies are constitutional as well as positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher brief:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  This session, in Fisher, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in mid-September, but the issue remains open to discussion and interpretation. 

In July, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan.  The same procedural course of events transpired in the initial case, which was taken up by the Supreme Court after a three-judge panel upheld the University’s policy and the Fifth Circuit denied an en banc review.  Given this latest ruling, it looks like the plaintiffs may again seek SCOTUS review.  Perhaps anticipating this move, the University of Texas President penned an op-ed posted online by the National Law Journal earlier this week, arguing that higher-education institutions still need affirmative-action policies.  We agree.

The BBA is always interested in drafting or signing on to amicus briefs that fall within our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  Both improved diversity in the legal profession through equal access to higher education and marriage equality fall squarely within these goals.  We will continue to keep an eye on both of these issues going forward. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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End of Formal Session

Today is the final day of formal session for the legislature.  By around midnight tonight, if controversial bills have not been addressed by the legislature, it is likely that they will have to wait until a new formal session begins in January 2015.  Here is the latest news on some of the bills we’ve been tracking:

The compromise bill, H4376, allows a police chief to petition a judge in district court within 90 days to deny a rifle or shotgun permit.  This provision removes the burden potentially placed on citizens in the House bill to fight a police chief-issued denial in court and differs from the Senate bill by maintaining some discretion for police chiefs to take action if they feel it is needed.

This bill contains a number of provisions in line with the principals set forth by the BBA’s Gun Control Working Group including multiple sections that attempt to bring the Commonwealth in line with the federal National Instant Criminal Background Check System (NICS).  The Working Group was comprised of attorneys with diverse backgrounds – gun owners, civil libertarians, a prosecutor, criminal defense attorneys, a law professor and health law experts, this group met several times last year to review all of the then-filed gun laws.

  • A bill streamlining adult guardianship issues also appears to be nearing enactment – S2249, “An Act relative to uniform adult guardianship and protective proceedings jurisdiction,” was ordered to a third reading in the House yesterday. The bill unanimously passed the Senate earlier this month.

The BBA’s Trusts and Estates Section supported a prior version of this bill and general principles of a uniform law on this issue, a position that was approved by the BBA’s Council in November 2013.  The bill requires cooperation between courts on guardianship and protective proceedings and authorizes courts to decline to exercise their jurisdiction if it determines at any time that another state’s court is a more appropriate forum.  Essentially, this law attempts to synchronize the guardianship system across states, thus improving communication between different state probate court judges, making issues of jurisdiction and enforceability of guardianship and conservatorship orders more efficient, and saving the time and resources of the probate court and attorneys practicing therein.

  • An attorney voir dire bill received a fair amount of press in the past few weeks.  The original bill, H4123, passed in the House in early June.  It proposed a number of changes to certain judicial procedures including permitting attorney-conducted voir dire in Superior Court cases.  Those in favor of the bill argued that a majority of states had similar laws and that such laws helped to level the playing field and eliminate discrimination from venire.  Opponents of the bill expressed concern that it would increase costs for the courts and local businesses by requiring more potential jurors to be summonsed and increasing the time spent on jury selection from a few hours to possibly several days.

The Senate’s Committee on Ethics and Rules amended the bill and shortly thereafter the Senate passed SB2296.  This version of the legislation included language that appeared to give judges more discretion in the process than the House’s version.  The House concurred with the Senate amendments, and as of yesterday the bill was enacted by both houses and laid before the Governor to be signed into law.

It looks like it’s going to be a busy day – and possibly a late night – over at the Statehouse as legislators work out the final details of these and other bills.  As we keep an eye on the end of this session, we’re already looking forward to the months ahead and will continue to keep you updated on all our legislative happenings.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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