Tag Archives: crime lab

One More Time…the Judiciary is a Separate Branch of Government and NOT a State Agency

We’ve said it before, and we’ll say it again:  The Judiciary is a separate and co-equal branch of government.  The other two branches are the Legislative and Executive branches and the purpose of this tripartite form of government is to prevent too much power from being amassed and brandished by any one branch.

When Governor Patrick filed a $30 million supplemental budget with the House of Representatives this week, we paused.  The $30 million supplemental budget request asks for money to cover the investigation and response costs for “state agencies and municipalities” associated with the state drug lab crisis.  The $30 million supplemental budget request refers to “state agencies and municipalities” four separate times.

So where do the costs to the Judiciary associated with the drug lab fit into all of this?  Nowhere in the supplemental budget document does the Governor refer to the costs the Judiciary is incurring due to the drug lab crisis.  We do know that the Governor meant well and is committed to addressing these costs to ensure justice and public safety.  We also know that the Governor did contemplate the costs to the Judiciary when he asked for $30 million to cover the costs from the drug lab mess.  But we’re left scratching our head as to why the Judiciary is being lumped into “state agencies and municipalities.”

The legislation even goes on to define “state agency” as “a state agency, board, bureau, department, division, section, or commission of the commonwealth.”  The Judiciary isn’t a department or a division of the commonwealth.  We’re saying it again – the Judiciary is a separate and co-equal branch of government.

Governor Patrick wants the supplemental money for the state drug lab to be appropriated into an account under the control of his Secretary of Administration and Finance.  The Governor wants his administration to be in charge of the various transfers to ensure that this extra money does indeed go to costs associated with addressing the drug lab fiasco.  But it appears that this scenario, at the very least, raises some important separation of powers issues.

It would be great to see the Legislature sign off on this $30 million request in a timely way, but the Legislature should be open to some friendly amendments that would allow the Judiciary to receive the state drug lab money directly.  This is simple.  The amendments should give the Judiciary the money they need to cover the costs from the drug lab while requiring them to provide a full accounting to the Legislature as to how the money is being spent.  We are confident that the Judiciary will cooperate and be fully transparent every single step of the way.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Focus Needed on Entire Criminal Justice System

When the next legislative session begins on January 2nd, you can expect to see us working on proposals that are not necessarily flashy but which are designed to address flaws in existing Massachusetts laws. For example, we will refile bills regarding the Uniform Child Custody Jurisdiction Enforcement Act, the Forensic Sciences Advisory Board, and an update of certain banking laws. Our ongoing public policy agenda also focuses on continuing to work on improving our justice system as a whole. In this context, criminal justice issues become salient. As a big picture thinker, the BBA likes to tackle issues holistically.

Say the word “holistic” and healthcare springs to mind. But many of the same principles apply across disciplines.  In the medical world, a holistic approach means considering all elements of a patient’s health: physical, mental, emotional, and spiritual.  Patients actively participate in their own medical care by taking preventative measures. Long gone are the days when a doctor would simply prescribe a patient medication or perform an operation hoping to cure an ailment. Now, doctors and patients work collaboratively to determine the best course of action and to make healthy life choices that promote overall good health.

A similar approach should be applied to the criminal justice system. As with health, it is dangerous to ignore indicators that the system is not living up to its potential.  When something does go seriously wrong, it can take something akin to radical surgery to fix. This could mean more financial resources, more oversight, an investigation, or some other type of reform.

The justice system is complex.  It’s made up of interconnected yet individual departments, agencies, and branches.  Problems in one area will almost always have ramifications on other parts of the system. The BBA takes a holistic approach to criminal justice because success isn’t measured just by securing more resources or the passage of a single piece of legislation.  Success should also be measured by reducing our recidivism rates, improving public safety and reintegrating individuals into society.

The BBA works to identify areas for improvement that would contribute to the overall wellness of the entire system.  Over the years, the BBA’s reports and recommendations have covered a wide array of topics such as the Report of the BBA Task Force on Children in Need of Services, the Report of the Task Force on Parole and Community Reintegration, and Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.

Additionally, the BBA actively works with several outside groups tasked with identifying problems while recommending measures that would provide more efficiency to the justice system.  We have a BBA member on the Massachusetts Civil Infractions Commission – a group charged with recommending permanent changes designed to reduce the number of lesser criminal cases in which public counsel would be required.  We also have a member on the Criminal Justice Commission – a group commissioned to study and make recommendations on the entire criminal justice system in Massachusetts.

But there’s more to be done. Building on the successes over the last four years in the area of CORI reform and sentencing reform, the BBA will continue to work towards eliminating mandatory minimum sentences for non-violent drug offenders.

The criminal justice system should function in a way that does more than just punish those who break the law. Improving public safety needs to mean more than just incarcerating people. Moving away from a philosophy of being “tough on crime” to one of being “smart on crime” requires taking a good look at the underlying problems that contribute to criminal behavior.  There needs to be a change to the culture of crime and punishment.  Fair and appropriate punishment is important, but real rehabilitation and reintegration into our society is going to be what it takes to break the cycle of recidivism.  To be “smart on crime” we need a comprehensive – and holistic – approach to improving the overall criminal justice system.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Drug Lab Crisis Points to Larger Issues in the Criminal Justice System

We are still just scratching the surface from the fallout resulting from the mishandling of evidence in alleged drug cases at the crime lab in Jamaica Plain. At the very least, the crisis we’re now facing underscores the importance of strict protocols and controls in every aspect of our criminal justice system.

The massive effort to right the wrongs caused by what happened at the state drug lab is already underway.  To his credit, Governor Patrick swiftly put together a central office to oversee the review of criminal cases potentially jeopardized by the mishandling of evidence.  The office, headed by David Meier, worked throughout the weekend to identify cases where Annie Dookhan, the state chemist in question, performed primary or secondary tests.  By Monday the estimate was that more than 1,100 individuals currently serving sentences in state or county houses of correction were affected.  This number does not include individuals in federal custody, those awaiting trial, those on probation or parole, those who were previously convicted and served time, or those otherwise punished.

In the last few days, a handful of defendants has already been released from prison or had their sentences suspended.  It’s expected that in the coming weeks there will be an onslaught of people who will be released from jail or face significantly lesser charges.

Calls are coming into the BBA’s Lawyer Referral Service on behalf of people imprisoned in drug cases.  The Committee for Public Counsel Services has created a specific office to deal with the influx of cases.  More information from CPCS can be obtained by calling their main number, (617) 482-6212.

What’s happening in Massachusetts is unprecedented because of the magnitude of the number of cases potentially impacted.  However, this isn’t the first time that state drug or crime labs have had to be shut done because of mishandling of evidence.  In 2008, the Michigan State Police shut down the Detroit Police crime laboratory because of a history of mishandling evidence.  In 2009, a San Francisco lab technician, who is currently facing federal charges, was accused of stealing cocaine from the facility and a total of 1,400 cases were reviewed.  More recently in Nassau County, New York, the state crime lab acknowledged mismatching reports on blood-alcohol tests, as well as possible contamination of drug evidence.  The local district attorney worked with the Nassau County Bar Association to help inform inmates whether their cases were impacted.  As many as 9,000 drug cases were reviewed.

It’s way too soon to assess what the impact will be on our justice system. But the scandal spotlights another important BBA public policy issue – the need to abolish mandatory minimum sentences.  Currently, Massachusetts has a one-size-fits-all system of sentencing for drug crimes. Sentences are often disproportionate to the seriousness of the crime or the risk to the public.

With few exceptions, Massachusetts’ drug-sentencing laws are based on the weight of drugs involved, rather than what a defendant actually did.

This crisis is putting our criminal justice system to the test.  While David Meier’s central office continues to work around the clock to identify those affected by what happened, it will be the justice system that determines whether or not we get it right.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Our Policy Agenda Reflects Our Range

It should come as no surprise that a one-size fits all approach to policy and advocacy doesn’t work for the BBA.  The universe of issues on which the BBA could take a public position is limitless.  In some ways, these issues exist on a continuum as illustrated below (click on the image to enlarge it).  As issues move along that scale from technical to policy to political, the Council’s role increases.

Our ability to be a leader on things that are timely, important and that resonate with our membership requires a process that is both flexible and practical.  The primary consideration for determining whether or not the BBA will speak is how central the issue is to the three main tenets of our mission: access to justice, the administration of justice, and improving the quality of Massachusetts’ laws.  The BBA is vocal on those issues that are central to our mission and more inclined to reserve judgment on issues that don’t clearly affect the practice of law or the legal profession.

When the BBA does speak, the organization speaks on behalf of its more than 10,000 members unless explicitly stating otherwise. The manner in which we make our position known varies.  We file amicus curiae briefs with the courts (see our amicus history), testify at public hearings on legislative issues, provide technical comments on proposed court rules, participate in official legislative task forces (see alimony), and meet with and write letters to key policy makers (see our NDAA letter to President Obama).

The BBA’s Council agenda for September reflects the breadth of issues the BBA considers at any given time.  Here’s a look at three items that are taking distinctly different internal paths at the BBA.

Section Comments on Massachusetts Child Support Guidelines

As we noted last week, the Massachusetts Child Support Guidelines are undergoing a federally mandated quadrennial review. These Guidelines clearly affect the quality of our laws and the practice of law.  These Guidelines and any changes to them is practice specific, directly affecting family law attorneys and their clients. Therefore, the BBA relies on the expertise of its Family Law Section and its Delivery of Legal Services Section (which is composed of many civil legal aid providers with experience in Probate and Family Court matters) to spearhead the BBA’s response. The Family Law Section solicited input from its membership and drafted comments and suggestions to be submitted to the Court. Though the comments still need to be reviewed by the BBA Council, the heavy lifting is done by our members at the section level.

Update on Fisher v. University of Texas at Austin

Back in August, the BBA filed an amicus brief in the Fisher case urging the Supreme Court to uphold race-conscious admission criteria.  This issue originated in the BBA’s Diversity & Inclusion Section.  Because of the BBA’s longstanding position that race-conscious admissions policies are vital to integrating the legal profession, we felt compelled to weigh in.  The BBA’s Amicus Committee and a small group consisting of BBA Council members worked under an accelerated timeline to draft, recruit signatories and file the brief. The Supreme Court is expected to hear arguments in the case on October 10th.

Massachusetts Drug Lab

Last month news broke about egregious breaches in protocol at the Massachusetts drug lab, jeopardizing thousands of state and federal cases. The problems uncovered at the state lab clearly affect the administration of justice.  This is so closely tied to our work in sentencing reform and touches on principles the BBA formulated in its Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. The BBA’s Council will determine if – and when – the BBA should develop a public policy position regarding the issues raised by the breaches.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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