Tag Archives: boston bar

NDAA Dangers Still Loom

In December, BBA President Lisa Goodheart urged President Obama to veto the National Defense Authorization Act for Fiscal Year 2012 (NDAA) because it was a radical departure from the rule of law established in the United States.  In particular, the detention principles in the bill pose serious threats to fundamental constitutional principles protecting individual civil rights and civil liberties.  Ultimately, President Obama signed the NDAA into law stating “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”  In a recent panel on the NDAA at the BBA, one expert described the bill as “the most alarming new law never heard of by most Americans.”  Here’s why.

Sections 1021 and 1022 of the NDAA allow for the indefinite detention of terror suspects – including American citizens arrested domestically – without a trial or charge.  The authority granted to the federal government by Sections 1021 and 1022 is clearly contrary to the principles of access to justice and civil rights that has served our country from its founding.  It also authorizes the military to make such detentions, holding U.S. citizens in military custody or prosecuting them in military tribunals.  This circumvents the U.S. Justice Department and avoids the federal court system which has successfully prosecuted hundreds of terrorism-related cases – including several here in Massachusetts.

Another troubling part of the bill is Section 1028.  This Section places undue roadblocks in the way for Guantanamo Bay detainees who have been cleared of wrongdoing and are trying to be transferred to foreign countries willing to accept them.  There are more than 170 men left in Guantanamo Bay – 89 have been cleared of wrongdoing and could be transferred immediately.  Section 1028 requires certain additional certifications and compliance in the use of funds to transfer detainees that only prolong the unjust detention of individuals found innocent of alleged crimes against the United States.

So where are we now?  The NDAA went into effect on March 1st.  In late February, President Obama issued Presidential Policy Directive 14 which sets out procedures for implementing Section 1022 of the NDAA.  Directive 14 contains a broad set of waivers that could be understood to mitigate the controversial Executive powers granted by the NDAA.   However, it is not a permanent solution.  Just because this President vows to not abuse the powers vested in the Executive by the NDAA, it does not eliminate the possibility of the next President – be it next January or 4 years from now – interpreting the NDAA differently.

The NDAA threatens our American ideals of civil rights.  Every time our rights are changed, our enemies win another victory.  Although the President has expressed his discomfort with the NDAA and issued Directive 14, this affront on our adherence to the rule of law is unacceptable and must be reversed.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Myths of Mandatory Sentencing

It seems everyone agrees that Massachusetts’ criminal sentencing laws need improvement.  Public safety, crime prevention, and punishment are important things to consider when contemplating any reforms in this area.  Yet it’s also important to understand that laws aimed at significantly lengthening prison sentences and making them mandatory, or changing parole eligibility, will impose more costs on our criminal justice system.

For the first time, the Legislature may be debating a habitual offender bill this session.  Earlier this week, we learned that these habitual offender bills, though seemingly losing steam after an emotional hearing before the Judiciary Committee in March, have been actively considered behind the scenes.

At the public hearing on March 16th, there were three bills under consideration that dealt with mandatory minimum sentences for serious crimes, including one that would eliminate parole for repeat violent criminals, with no regard to the facts of an individual case.  The other two bills, as currently drafted, would expand mandatory minimum sentencing to non-violent offenses including drug crimes, check fraud, and even tax evasion.  Although well-intentioned, these proposals capture crimes that, while being harmful to society, do not present a danger to the general public.

Because of time constraints, the BBA did not analyze the details of each of the bills.  But the BBA does oppose mandatory minimum sentences, with the exception of crimes mandating life imprisonment for murder.  The bills are overly broad, do not exclude nonviolent drug offenses, and would undoubtedly result in lengthy and costly sentences.  Here are some of the reasons the BBA opposes mandatory minimum sentences:

  • they have caused prison and jail overcrowding;
  • they have resulted in an increase in court congestion;
  • they have not reduced our serious crime problem;
  • criminal sentences need to correspond with each offender’s individual culpability and still give judges discretion.

Mandatory minimum sentences in drug cases are notoriously unjust because the laws do not differentiate between the drug kingpin and the first time drug offender.  As a result, prisons are being filled with low-level drug offenders serving protracted sentences.

Currently in Massachusetts, convicted felons are eligible for parole after serving half of their sentence, except for first-degree murderers, who are not eligible for parole.  Those convicted of second-degree murder must serve 15 years of a life sentence before they are eligible for parole.

By failing to take a nuanced approach we could end up with very serious and unintended consequences.  Massachusetts needs to be both tough, but also smart, on crime.

Any habitual offender law that the Legislature considers needs to be drafted so that only the most violent offenses are targeted.
– Kathleen Joyce

Government Relations Director

Boston Bar Association

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All Politics Really is Local

Tip O’Neill once said “all politics is local,” when asked to describe how the problems and concerns of towns and cities around the country affect the actions of their Congressmen and Senators in Washington, D.C.  This remains as true today as it was then.

Big-city politics start with small-town political issues.  Or said another way, what may seem important to only a discrete group of people – like lawyers – can actually end up being good policy for everyone.  For example, the new Massachusetts Homestead Reform Act is good consumer policy for all.  Similarly, this year’s effort to keep the probation department in the judicial branch where judges can closely monitor probationers is important to every city and town in Massachusetts.  But the wisdom in the late Congressman’s phrase isn’t limited to how politics works on Capitol Hill or Beacon Hill.  The phrase can also apply to building an effective campaign strategy.

On June 22nd, the BBA’s Public Interest Leadership Program (“PILP”) will host their annual “All Politics is Local” program.  Every year PILP participants put this program together to inspire and encourage attorneys to run for office.  Panelists often talk about what it means to be a lawyer and to be actively involved in local politics.  They’ll describe the basics of starting a campaign and the challenges of balancing an active law practice with what it takes to run for office.  This year’s panel includes: the Honorable Maura Doyle, the clerk of the Supreme Judicial Court for Suffolk County; William Kennedy, a former chief legal counsel to the Office of the Speaker of the House and now a partner at Nutter, McClennen & Fish; Joseph Driscoll, a former state representative and now a senior vice president at O’Neill and Associates; and Michael Day, an associate at Mintz Levin who ran for state senate in 2010.

A race for public office at the local level does not usually depend on huge campaign budgets, prime time television ads, or highly publicized debates.  It’s more common to hear stories of worn out shoes, scoured rolodexes and hours spent knocking on doors.  Running for office is daunting, but serving in public office can be gratifying.  A campaign provides only a limited amount of time to capture the imagination of voters and differentiate your vision from that of your opponents.

While the practice of law has long been seen as a launching pad for political candidates, that’s no longer true. This past election cycle saw a 20 percent drop in lawyer-legislators at the State House.  The number fell from 65 to 53 out of a total of 200 legislators.  Still, lawyers need not run for office in order to be involved in local politics.  After all, part of being a lawyer is being an active citizen.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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State House Update

With less than 8 weeks left for formal legislative sessions, the Legislature’s focus has shifted away from the state budget and onto other, significant policy issues.  Last week two conference committees were named to reconcile the differences between the House and Senate versions of the state budget and the court reorganization bill.  This week the Judiciary Committee heard testimony on two bills of importance to the BBA.  Here’s a snapshot of some of the things we’re keeping our eyes on.

Court Reorganization Bill in Conference

The Court Management Conference Committee has been appointed to come up with a single version of H 3395 and S 1911.  In May, both the House and Senate advanced the court reorganization bills with unanimous votes.  While both bills would split trial court oversight between civilian court administrators and judicial managers and impose stricter hiring standards with wide reforms relative to job recommendations, there are differences between the bills.  For instance, the Senate’s bill eliminates several new management positions proposed by the House bill.  The six members of this conference committee are Senators Creem, Joyce and Tarr and Representatives O’Flaherty, Dempsey and Winslow.

State Budget in Conference

With budget deliberations complete in both branches, the Budget Conference Committee, the group tasked with negotiating the differences into a single budget bill, met for the first time on Wednesday.  The final budget has to be in place by July 1st, but their work must be resolved before that in order for Governor Patrick to have the required statutory 10 days to review the budget proposal and offer amendments and vetoes.  The six members of the Budget Conference Committee are Senators Brewer, Baddour and Knapik and Representatives Dempsey, Kulik and deMacedo.

June Judiciary Hearing

Yesterday the Judiciary Committee held a public hearing lasting nine hours in a packed Gardner Auditorium.  The BBA participated in the hearing by supporting two bills on the agenda.  The BBA submitted written testimony in support of the Transgender Equal Rights bill, joining with advocates from theMassachusetts chapter of the ACLU.  The Transgender Equal Rights bill will extend explicit protection in discrimination and hate crimes cases to transgender people.

The second piece of legislation, S 753 and H 2165 the Access to DNA bill, will provide post conviction access to DNA evidence.  David E. Meier, Martin F. Murphy, Gregory J. Massing, and David M. Siegel, all experts in the criminal justice system and members of the BBA Task Force to Prevent Wrongful Convictions, testified on behalf of the BBA in support of legislation that would put in place a mechanism for post conviction DNA evidence testing.  The panel discussed their work on the Task Force, presented the need for this statute and set the stage for a group from the New England Innocence Project which followed with compelling stories of how Massachusetts’ lack of an access to DNA testing statute has harmed them.

Betty Anne Waters shared her story.  Her brother Kenny was wrongfully convicted of murder and robbery in 1983, and spent 18 years in prison while Betty Anne earned her college and law school degrees in order to represent and exonerate him.  The Committee also heard from Dennis Maher who was wrongfully convicted of two rapes and an attempted rape.  Dennis was sentenced to 20 to 30 years in prison but was finally released after DNA proved he did not commit those crimes.  Dennis’ Op Ed describing what happened to him appeared in yesterday’s Boston Herald.

Alimony Reform Moves Favorably from Judiciary

The Alimony Reform Act, S 665, was reported favorably by the Judiciary Committee last week.  It is expected that the House will debate the bill next Wednesday.  The bill will move on to the Senate soon after the House finishes its debate.  You can read more about the BBA’s efforts on the Alimony Reform Act from our coverage here on Issue Spot.

Human Trafficking Bill Moves to the Senate

One bill that the BBA is watching but has not yet taken an official position on is the Human Trafficking bill.  This bill would establish state crimes of human trafficking and has already passed the House.  Attorney General Martha Coakley and Suffolk County District Attorney Dan Conley have been champions of this legislation.  Our Criminal Law Section began discussing this issue after the AG outlined her legislative priorities at a BBA program held in early April.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Let’s Extend Equal Rights to Everyone in Massachusetts

Think about it!  EMC, Harvard University, Harvard Pilgrim Health Care, and John Hancock – to name just a few – are among the growing number of Massachusetts employers providing equal opportunities and protections to transgender people.  Shouldn’t our state laws do the same?

Since legislation was first filed in 2007, the BBA has supported adding “gender identity and expression” to the state’s civil rights laws and to the list of offenses that are treated as hate crimes. A simple update to the Massachusetts discrimination laws, An Act Relative to Transgender Equal Rights really is a civil rights bill that would provide explicit protection to transgender people. Current Massachusetts civil rights laws prohibit discrimination only on the basis of age, race, creed, color, national origin, sexual orientation, sex and marital status.

Isn’t it about time that Massachusetts joins the growing number of states that already have laws protecting transgender people? A June 8th Judiciary Committee hearing is the next step in that process.  The Judiciary Committee will hear testimony on H 502 and S 764, filed in the House by Representative Carl Sciortino and in the Senate by Senator Benjamin Downing.

We have made progress in this area.  The Boston City Council passed a transgender protection ordinance nine years ago and earlier this year Governor Patrick signed an executive order banning discrimination against transgender state workers.  With this order, Massachusetts joins several other states with executive orders protecting transgender state workers.

While these are significant steps, Massachusetts should protect all workers and not just state workers.

As in past legislative sessions, supporters of this proposal will probably far outnumber opponents.  Even so, next week’s Judiciary Committee hearing is important.  If this bill is passed, Massachusetts won’t be just joining a growing number of jurisdictions around the country that are enacting transgender-inclusive laws, but will be making a significant statement — that discrimination against transgender individuals is inconsistent with our common desire to live in a just society.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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A Race to Avoid Being Dead Last: MA Needs Access to DNA Now

In less than two weeks, the Judiciary Committee will be holding a public hearing on the BBA’s bill on access to DNA evidence.  Sponsored by Senator Cynthia Creem and Representative John Fernandes, S 753 and H 2165 are on the June 8th agenda in Gardner Auditorium.  Massachusetts likes to think of itself as cutting edge and as an innovator of ideas and practices.  But the sad truth is that Massachusetts is one of only two states that does not guarantee access to DNA testing.  Oklahoma is the other.

The hearing is just the next step in a process that began in the fall of 2008 when then BBA President Kathy Weinman formed a task force to study reforms needed in Massachusetts to reduce the risk of convicting innocent people.   After fourteen months of work, the Task Force released its report titled Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.  Guiding the work of this Task Force was the understanding that for every person wrongfully convicted, a criminal is free to commit more crimes.

This Report, an impressive achievement, did not just sit on a shelf gathering dust after it was published.  Instead it has been a critical part of the conversations we’ve had with members of the legislature and our partners in public safety.  We’ve discussed the process that led to the Report and described how it’s more than just undoing a wrongful conviction, but bringing justice to victims by convicting the guilty.  In all of our meetings there has been a shared understanding of the importance of having a statute like this in Massachusetts.  Often we’ve been met with enthusiasm to help get this done in Massachusetts, and also questions as to why this hasn’t been done before.

An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case.  Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.

In practice, Massachusetts does much of what this bill proposes.  In many cases, access to DNA is granted to the defendant.  The Massachusetts State Police Crime Lab maintains all DNA evidence indefinitely and their facilities meet the highest standards of the field.  To his credit, Suffolk County District Attorney Dan Conley has been doing this for years.  The problem is that none of this is required by law.

Massachusetts has to pass this bill now.  The Oklahoma Bar Association passed a resolution last September establishing a commission to address the reliability and accuracy of convictions in their state.  This comes two years after we created our Task Force and nearly one year after Getting it Right was released.  Massachusetts could end up being the only state in the country without post-conviction access to DNA.  Wouldn’t that be embarrassing?

-Kathleen Joyce

Government Relations Director

BostonBar Association

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LSC Fighting Off Federal Cuts

Legal services providers face another yet another blow – following last week’s announcement that the new House Appropriations Committee has proposed a $70 million cut to the Legal Services Corporation (“LSC”) for Fiscal Year 2011.  This immediate cut would be catastrophic to the delivery of legal services in Massachusetts because it would mean an 18% reduction in LSC’s annual funding.  (Because we are already half way through the current fiscal year, legal services providers tell us this actually translates to a 36% cut.)

There have already been serious reductions in other funding sources upon which LSC-funded programs also depend – especially Interest on Lawyers’ Trust Accounts (“IOLTA”). As we noted in a previous post, record low interest rates and reductions in the number of real estate transactions have resulted in dwindling IOLTA revenues.

What the House Appropriations Committee proposed last week is in contrast to what President Obama’s unveiled his budget this week.  For Fiscal Year 2012, President Obama actually proposed an increase of $30 million for LSC.

LSC provides grants to independent local programs and currently funds 137 local programs, serving every county and Congressional district in the nation. LSC distributes 97% of the funds it receives to these programs.  Massachusetts has four LSC-funded programs: the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy.

If this mid-year cut goes through, the entire legal aid delivery system in Massachusetts will suffer.  LSC has a big budget battle ahead of it. The BBA has already tried to do its part.

Today (February 17th), BBA President Don Frederico sent every member of the Massachusetts Congressional Delegation a letter urging no cuts in LSC funding. We will also join the American Bar Association in D.C. this April to lobby for funding for Fiscal Year 2012.  We urge Congress to adequately fund legal services to provide access to justice for poor people in the United States.

N.B. Some organizations in Massachusetts, such as Greater Boston Legal Services, do not receive LSC funding, and they still need our help.  That budget battle – to hold onto level funding – has just begun in the state Legislature.  Please be sure to join us next week at Walk to the Hill.  The event has been rescheduled for Tuesday, February 22nd at 11:00 AM in the Great Hall at the State House.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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