Tag Archives: juvenile justice

Difficult Decisions: Statehouse Juvenile Justice Hearing

On the same day Senate Ways & Means Committee released its FY15 budget, the Joint Committee on the Judiciary held a hearing on Juvenile Justice issues.  At first glance, the Judiciary Committee’s hearing agenda appeared light, containing only ten bills.  Upon closer examination of the bills on the agenda, it was no surprise that the hearing room was packed.  The Essex and Suffolk County District Attorneys, a former Chief Justice of the Massachusetts Juvenile Court, Senators Bruce Tarr, Barry Finegold, and Karen Spilka, Representative John Keenan, and the Chairman of the Massachusetts Juvenile Justice Advisory Committee took part in the hearing.   

In late 2013, the BBA’s Council unanimously approved a set of juvenile justice principles supporting the elimination of juvenile life without parole sentences.   Shortly thereafter, the SJC ruled in the Diatchenko case that such sentences were indeed unconstitutional.  Read more about the case and our position here

The SJC decision specifically calls for juvenile offenders to receive a “meaningful opportunity” for parole, but leaves it to the legislature to define that term.  Many of the bills at Wednesday’s hearing focused on different ways to define this statement.  There was plenty of debate at the hearing and various bills on the docket call for anywhere from 10 to 35 years before juveniles convicted of first degree murder become eligible for parole. 

The bills also include various provisions on parole considerations for these offenders.  Listening to the testimony, the following issues came to the fore for legislative consideration:

  • Fairness –  This was the most popular word of the hearing.  What length of time until parole eligibility is fair?  Legislators and panelists alike raised fairness considerations for victims and their families, society generally and specific communities, as well as the defendant.  There were multiple levels of fairness considerations for defendants.   Some testifiers argued for long periods of time due to the heinous nature of these crimes.  Others asked for relative leniency due to the defendant’s age, underdeveloped brains, and potential felony murder conviction.  Multiple testifiers noted that more than 70% of those currently serving juvenile life sentences had co-defendants, 75% of whom are adults.  Furthermore, 30% of those juveniles in prison for life were sentenced to felony-murder, meaning they accompanied another who did the actual killing, and in most cases the older person served a shorter sentence after accepting a plea bargain.
  • Confidence in the justice system –  Those advocating for longer parole eligibility terms touted their confidence in the justice system, stating that only juveniles who committed the most heinous crimes were sentenced to life and thus merited a longer time before parole eligibility.  Those advocating for shorter parole eligibility terms expressed confidence in the parole board’s ability to determine whether a person was adequately rehabilitated before potential release.  They stressed that parole eligibility did not equate to release.
  • Potential for rehabilitation –  Testifiers advocating for shorter parole eligibility terms cautioned against the mere warehousing of convicts, and expressed concern that juveniles sentenced to life with long periods without parole eligibility would suffer due to lack of program and rehabilitative opportunities (priority is given to those closer to potential release) and the challenge of staying in touch with family and friends for such an extended period of time, a parole board consideration.

These are not easy issues, and we will pay close attention as these bills progress through the legislative process.   

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Statehouse Update

This week both Governor Patrick and Speaker DeLeo outlined their priorities for the upcoming year.  In his final State of the Commonwealth on Tuesday night, Governor Patrick emphasized investments in education, innovation, and infrastructure. 

The next day, Speaker DeLeo addressed the entire House of Representatives, listing an increase in minimum wage coupled with business-friendly reforms, stricter gun control laws, and a domestic violence bill as three of his top issues. 

As we focus on legislative and budget activities at the Statehouse it’s important to realize that although this legislative term may appear uneventful from the outside, it has been full of activity.  Even without high-profile debates on big-issue bills there’s a lot going on. 

Take for instance, the fact that there has been an unprecedented amount of turnover in elected officials and leadership positions.  Recently, long time House Chair of the Joint Committee on the Judiciary, Representative Eugene O’Flaherty, announced his resignation to become corporation counsel to Boston Mayor Martin Walsh.  This leaves the House chairmanship open.  Meanwhile, Senator William Brownsberger has only held the Senate chairmanship of the Judiciary Committee for a matter of weeks. 

Other leadership positions currently vacant include the House second assistant majority leader and the chairmanship of the House Ethics Committee.  These positions will all be filled in the coming weeks.

Legislatively, the statehouse is poised to take action on a number of laws.  Significant bills addressing welfare reform, compounding pharmacies, and veterans services remain in conference committees.  Just last week, a group of lawmakers held a press conference in support of a juvenile justice bill comply with the Supreme Judicial Court’s ruling in Diatchenko.  The bill requires that juveniles convicted of first degree murder serve 35 years before parole eligibility. 

From a budget perspective – the Governor’s budget has been released and we now turn our attention to the House and Senate as they develop their budget numbers.  The House Ways & Means Budget will come first in early April, followed by House and Senate budgets in the following months.  A final budget will be ready by July 1st

All in all, every indication points to a very eventful next few months as staffing and leadership positions are filled and legislation and budget discussions come to the fore.     

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Juvenile Justice Through The Possibility of Parole

Following the BBA Council’s unanimous approval of a set of juvenile justice principles supporting the elimination of juvenile life without parole sentences, the Massachusetts Supreme Judicial Court (“SJC”) ruled in the case of Diatchenko vs. District Attorney for the District & Others that these sentences are indeed unconstitutional.  The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, is immediately eligible for parole.  In addition, due to the retroactive implications for other juvenile life without parole convicts who have served at least 15 years, roughly 63 inmates will now become parole eligible for the first time.  However, as underscored by a recent editorial in the Boston Globe, “eligibility for parole” merely entitles a convict to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed and taken full responsibility for his or her actions. 

The BBA has long supported bills abolishing the juvenile life without parole sentences in prior legislative sessions.  The dialogue gained further momentum recently after last summer’s U.S. Supreme Court decision in Miller v. Alabama which held that juvenile life without parole sentences for minors are a “cruel and unusual” punishment in violation of the 8th Amendment.  Judges must consider the defendants’ youth and the nature of the crime before handing down a sentence without parole.

The SJC’s decision went beyond mere compliance with the Miller holding, explaining that the judges considered current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  Thus, a judge cannot ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment. 

The SJC’s holding supports most of the substance of the BBA’s approved principles.  But the BBA also calls for individualized evidentiary sentencing hearings for juveniles, considering a number of issues specific to juveniles in addition to traditional factors required by law, as well as a statutory right to counsel at parole hearings for juveniles.

So what comes next?  Parole boards will begin hearing the cases of those juveniles sentenced to life without parole and making their determinations.  Furthermore, the legislature may put bills on the fast track to passage in order to bring the laws into compliance with this ruling.  We at the BBA applaud the SJC for their ruling and look forward to these next steps.

 – Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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13 for ’13

As 2013 draws to a close, here’s a timeline of 13 things we’re thankful for this year.

1) Diversity.  We tried to live up to our illustrious history of diversity and inclusion this year at the BBA.  From amicus briefs defending marriage equality and affirmative action to the Beacon Award, we reasserted our commitment to expanding fairness for all.  This year we released our Diversity and Inclusion Timeline highlighting key events in our history that helped shape our community. 

2) Taking it to the Top.  We started the year off right by advocating for trial court funding with the head of the executive branch, Governor Deval Patrick.  For the first time we sat down and spoke directly to Governor Patrick and his legal staff about this important issue. 

3) Walk to the Hill.  In late January, we proudly participated in the 14th annual Walk to the Hill with 650 lawyers.  Our members used their advocacy skills by speaking to legislators and staffers on the impact civil legal aid funding has in Massachusetts.  We  helped secure $13 million in civil legal aid funding for Fiscal Year 2014.  Please join us for Walk to the Hill 2014, scheduled for Thursday, January 30th.  We hope you’ll join us.  (More information here and here)

4) Protecting Attorney Ethics Consultations.  We were pleased that the SJC ruling reflected a lot of the same thinking as our amicus brief in RFF Family Partnership v. Burns & Levinson, by applying attorney-client privilege to a lawyer’s consultation with in-house ethics counsel.  This issue was an important one for all of our members who practice in law firms, large or small, and for their clients.  The ruling gives lawyers the requisite peace of mind to consult in-house ethics counsel to make sure they act in accordance with the state’s ethics and professional conduct guidelines.

5) Some Clarity on Decanting.  We sought guidance through an amicus brief in Richard Morse, Trustee v. Jonathan A. Kraft et al. This case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees.  The SJC ruled favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

6) BBA Statewide Task Force.  In April, we created the Boston Bar Association Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  Chaired by past-president J.D. Smeallie, the Task Force features 27 diverse leaders in the state’s legal community from law firms, in-house counsels, academia, the judiciary, legislative, and executive branches, and legal services organizations.  The Task Force is making significant progress in quantifying and assessing both the civil legal aid services currently provided in the state and the needs not being met.

7) Legal Services Discussion.  Jim Sandman, President of the Legal Services Corporation (LSC) joined us at the BBA over the summer to talk about the current state of LSC funding, reinforcing the need for bi-partisan support and the importance of connecting with the business community. President Sandman emphasized that legal services is not a social safety net or a poverty relief program.  Legal services are necessary to ensure access to justice for all 

8) Defense of Marriage Equality.  This summer, we celebrated the Supreme Court’s rulings upholding marriage equality in the cases of U.S. v. Windsor and Hollingsworth v. Perry.  Reaffirming our longstanding advocacy efforts for marriage equality, we joined a coalition of other bar associations, civil and human rights groups, and public interest and legal services organizations that signed onto the briefs.  (Read the briefs here and here)

9) Amending the UCC.  On July 1st, Governor Patrick signed into law “An Act making amendments to the uniform commercial code covering general provisions, documents of title and secured transactions.”  We collaborated with the Massachusetts Bar Association and the Massachusetts Bankers Association to get this bill before the House and Senate for their final approval.  While this law didn’t make big news, it will remove needless obstacles that small businesses run into when trying to secure credit.

10) Paula Carey named Chief Justice of the Trial Court.  We cheered when Paula Carey, former Chief Justice of the Probate and Family Court began her post as Chief Justice of the Trial Court this summer.  We look forward to working with her and Court Administrator Harry Spence as the trial court implements its strategic plan.   

11) Judicial Pay Raise.  At long last, the legislature passed a judicial pay raise – an essential step to continuing providing the high quality justice residents of Massachusetts expect and deserve.  Before this legislation, Massachusetts ranked 48th in the nation in judicial compensation. 

The $30,000 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. 

12) A Step in the Right Direction for Mandatory Minimum Sentences.  In August, U.S. Attorney General Eric Holder unveiled a Justice Department proposal to reduce mandatory minimum sentences for nonviolent drug offenses, something that the BBA continues to work on at the state level.  Repealing mandatory minimum sentences for low-level drug offenses is sensible, fiscally responsible, and more protective of public safety.  Repealing mandatory minimum sentences also returns to judges the discretion they need to dispense fair and effective justice.

13) Juvenile Justice.  This summer, the state enacted “An Act expanding juvenile jurisdiction.”  This law, raising the age of jurisdiction for juvenile courts from 17 to 18 years old, was unanimously supported by the BBA Council.  The change moved Massachusetts in line with the majority of other states and, according to researchers, will give minors a greater chance of becoming productive members of society.

2013 was a significant year.  Here’s looking ahead to a great 2014!  Happy holidays!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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