Monthly Archives: August 2013

Discourse and Disagreement on Guns

When lawyers talk about gun and firearm safety, they often use words and phrases like “reasonableness” “narrowly crafted,” “overbroad,” “civil rights,” “minimum mandatory sentences,” “loopholes,” and “privacy issues.”  Gun and firearm safety is neither easy nor straightforward. 

In an effort to make sense of it all, the Boston public hearing on gun control and firearm safety will be held on Friday, September 13th at 10 a.m.  The Joint Committee on Public Safety and Homeland Security has reserved Gardner Auditorium at the State House for the fourth hearing on this subject.  With 58 bills on the agenda covering the entire spectrum of issues connected to gun control laws, a large crowd is expected to turn out to testify or just listen that day.  We’ll be there too. 

The BBA is still uncertain if it will support or oppose any specific proposal.  Our own internal study group has been hard at work debating various aspects of gun control and firearm safety and its work continues as the public hearing approaches.  Our only conclusions thus far are that the BBA can add value to the debate by parsing the legal points from the political positions and the legislature expects to hear from us.

While it’s anything but simple, there are some areas where reasonable people can agree.   First, Massachusetts already has some of the strictest gun control laws in the country.  Even so, it is not clear whether any law could prevent a tragedy like the one at Sandy Hook in Newtown, Connecticut.  Second, Massachusetts gun laws need to be reformed because they are convoluted, complex, and difficult to understand, even for lawyers.  Massachusetts gun laws can be found in state statutes, case law, and even local ordinances and regulations.  Third, we need to figure out ways to keep guns away from criminals, juveniles, and those with mental health disqualifications.  Finally, any legislation needs to address public safety and privacy interests of individuals at the same time.       

Regardless of the legislature’s actions, personal firearm ownership and the ability to carry a concealed gun will remain a hotly debated topic.  Proponents of the Second Amendment’s right to bear arms will continue to feel as strongly about their rights as their opponents do about the need for tougher gun laws.  Discourse and disagreement go hand-in-hand with gun control. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Getting it Right: A Bargain at Any Price

A year ago when we first learned that Annie Dookhan, a chemist at one of our state drug labs, was accused of tampering with and mishandling evidence, we knew it would affect our communities, courts, prosecutors, public defenders, and probation offices.  But there was no way we could appreciate the magnitude of its impact on our entire justice system.  When the story broke, we knew it was going to be a huge and daunting problem. 

Dookhan had worked at the Hinton Drug Lab for almost a decade and was associated with a database of 70,000 drug samples.  We knew solving the problem would be an expensive undertaking.  To date, the Office of Administration and Finance estimates the state has spent $7.6 million on this issue.  Finally, we knew it would take an expert to ensure the fair administration of justice.  Fortunately David Meier was appointed by Governor Patrick to make sure that we got it right. 

Working in coordination with District Attorneys, the Committee for Public Counsel Services, the private defense bar, the US Attorney’s Office, the Federal Defender’s Office, the courts, and other criminal justice agencies, Meier reviewed and compiled a list of 40,323 individuals who had drug samples tested by Annie Dookhan. 

Meier’s case-by-case review, first by hand and then electronically, emphasized accuracy over expediency.  Criminal justice must be tied to public safety and fundamental fairness.  “Getting it right” within this system requires investigation, resources, oversight, and reform. 

It’s easy to say that one person, Annie Dookhan, is responsible for compromising over 40,000 criminal cases.  In fact, it’s more likely that her actions have revealed a systematic breakdown that let these actions go undetected for so long. 

Meier’s work over the last year will go a long way to returning integrity to a criminal justice system that has been shaken by perhaps the biggest debacle in recent Massachusetts’ history.  However, there’s still work to be done – principally, we need to ensure case reviews for all the individuals affected by this scandal. 

While we know more now than we did a year ago, we still don’t understand why or how this happened.  Meier’s work is done, but the Attorney General’s Office is handling the ongoing prosecution of Annie Dookhan, and the Inspector General’s Office is overseeing an investigation into the practices, procedures, and overall reliability of drug testing at the state lab.  Fixing the laboratory testing system and reviewing all the affected cases may be time consuming and expensive, but ultimately “getting it right” is what’s at stake.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Little Sanity in the Mandatory Minimum Sentencing Debate

Earlier this week, Attorney General Eric Holder unveiled a Justice Department proposal to reduce mandatory minimum sentences for nonviolent drug offenses.  Described as “courageous” and “groundbreaking,” the BBA was glad to hear the news. If you’re asking us why, let’s just say the BBA has been calling for sentencing reform since at least 1989, when we published the first of numerous reports calling attention to the harms wrought by misguided mandatory minimums.  Just for the record, the Holder guidelines essentially echo what we’ve been saying all along.

Among other things, the Justice Department’s new guidelines focus on reducing our overcrowded prisons by doing away with mandatory minimums for certain offenses and reducing sentences for certain elderly prisoners.  The new guidelines also emphasize drug treatment programs as an alternative to prison. 

In his speech this week at the American Bar Association’s annual meeting, the Attorney General said that we need to work to “ensure that incarceration is used to punish, deter, and rehabilitate – not merely to warehouse and forget.”  Bravo!  We’ve been saying the same thing about sentencing and incarceration for more than twenty years. 

Repealing mandatory minimum sentences for low-level drug offenses is sensible, fiscally responsible, and more protective of public safety.  It also returns to judges the discretion they need to dispense fair and effective justice.   In the last few years, the BBA has played a part in incremental but significant victories at the state level:  

  • During the 2009-2010 legislative session, lawmakers passed a bill making certain nonviolent drug offenders eligible for parole after serving half of their sentences. 
  • During the 2011-2012 legislative session, lawmakers passed a bill reducing mandatory minimum sentences for many drug offenses.  In certain cases, drug offenders already in prison became eligible for parole, work release and earned good time.  The drug-free school zone was reduced from 1,000 feet to 300 feet and the school zone law no longer applied to drug offenses occurring between 12:00 a.m. and 5:00 a.m.  Also, the law increased the quantity of drugs needed to trigger some trafficking offenses.

We have a long way to go until mandatory minimum sentences are repealed.   The Joint Committee on the Judiciary expects to hold a public hearing on all sentencing bills in 2014.  Expected to be on the list of bills for the sentencing hearing is House Bill 1646, “An Act to repeal mandatory minimum sentencing laws for drug offenses.”  With the hearing several months away, we will use this opportunity to work with legislators and others who are also thinking about public safety and the administration of justice.  We anticipate recommendations from the Massachusetts Criminal Justice Commission in the coming months.  This group is made up of public safety officials, legislators, prosecutors and defense attorneys, including a BBA representative.  Their recommendations are expected to cover sentencing.  

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Review of Gun Laws in the Commonwealth Continues

Gun violence, gun safety and gun licensing are just a few of the issues that the Legislature’s Joint Committee on Public Safety has been considering during the last few months.  With some of the strictest gun laws in the country, Massachusetts lawmakers have had a renewed focus on gun issues because of the tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut.  There are several efforts going on simultaneously that focus on reducing gun violence; public hearings are being held by the Joint Committee on Public Safety, a gun violence “listening tour” hosted by Chairman Harold Naughton has been making stops across the state, and Speaker DeLeo’s independent task force on gun issues is expected to make recommendations soon.

The Joint Committee on Public Safety, co-chaired by Representative Naughton and Senator James Timilty, has already held three public hearings on the approximately 60 bills currently filed in the Legislature.  A fourth hearing at the State House is expected to be scheduled in the next few weeks.    The first three hearings drew crowds as large as 400 attendees and lasted up to seven hours.  The first hearing was held at Cape Cod Community College, the second hearing was held at Assumption College, and the most recent hearing was held in Springfield. 

Among other things, the bills under review deal with everything from firearm identification cards, requiring GPS locators in guns, a statewide gun offender registry, mental health issues, school safety, hunting, and mandatory insurance for gun owners.  However, not all of the bills are trying to limit access to guns- one bill actually includes a repeal of Massachusetts’ ban on assault weapons. 

Representative Naughton’s gun violence “listening tour” has been designed as an open forum to promote a discussion on preventative solutions to gun violence.  The listening tour has already visited Worcester, Chicopee and Fall River.   These forums have brought together residents, public safety officials, local officials, and community organizations to share ideas and have candid discussions about what’s going on in their communities. 

The goal of the work of the Public Safety Committee is to recommend comprehensive gun law reform legislation in the next few months.  While the Public Safety Committee is holding public hearings and conducting the listening tour, Speaker DeLeo’s independent task force is expected to make its recommendations to the Legislature at the end of this month. 

The BBA’s own working group on gun-related bills still continues to review the bills being considered by the Legislature. Among our group’s members are attorneys who regularly deal with civil rights and mental health issues, both of whom have helped the group understand the various dimensions of these bills.  This summer, the BBA group has been trying to formulate a set of principles meant to address the important public safety and civil rights issues that come into play when thinking about any changes to these complicated laws dealing with gun ownership and gun violence.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Judges’ Pay Raise Passes at Long Last

It was a long time coming, but on Tuesday both the Massachusetts House and Senate removed the last hurdle to giving Massachusetts’ state judges a well-deserved, and long awaited salary increase. To approve the judicial pay raise, the House and Senate rejected an amendment from Governor Patrick.

The $30,000 pay raise will take effect in two equal installments; the first increase will be effective January 1, 2014 and the second increase will be effective July 1, 2014. 

In other State House news, the Senate unanimously passed the juvenile jurisdiction bill on Tuesday.  This bill will raise the age of jurisdiction for juvenile offenders to 18.  Research has shown that the brain of a 17-year-old is still in its developmental stages and segregating youthful offenders from adults in our criminal justice system will prevent juveniles who are sentenced from being put in the same environment as older and more serious offenders. 

This new legislation will make it possible for 17-year-old offenders to be processed in juvenile court rather than the adult court system.  Right now a 17 year old accused of a crime in Massachusetts is automatically treated as an adult regardless of the circumstances or severity of the offense.  However, 17-year olds who are charged with serious crimes like murder will still be tried as adults. 

The bill passed the House in May and is expected to be on Governor Patrick’s desk for his review soon.  Governor Patrick has already expressed his support for this legislation; when signed, Massachusetts will join 39 other states, as well as Washington D.C. and the federal government, that already consider 18 as the age of adult criminal jurisdiction. 

With work on the budget finished, it is not expected that the House or Senate will meet in formal session again until September. 

 – Kathleen Joyce
Director of Government Relations
Boston Bar Association
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