An Appetite for Change

Issue July/August 2017 By Jessica Vigliotta

Criminal justice reform has been a topic of debate for a long time. But there are indications that comprehensive change may come sooner rather than later in Massachusetts.

The commonwealth's top elected officials - Governor Charlie Baker, Speaker of the House Robert DeLeo and Senate President Stanley Rosenberg  - have signaled their support for criminal justice reform, And the Joint Committee on the Judiciary convened hearings in June that specifically addressed several aspects of criminal justice reform.

A few weeks before the June hearings, the Massachusetts Bar Association continued to delve deeply into all aspects of criminal justice reform at its House of Delegates meeting on May 18, when HOD members passed five resolutions that established standards and suggestions for various areas of it. The adopted resolutions were published in a report by the Criminal Justice Reform Working Group, a collaboration between the Civil Rights and Social Justice Section Council and the Criminal Justice Section Council. (The report is available online at www.massbar.org/MBA2017CJresolutions.)

The MBA resolutions seek to "address problems within the criminal justice system that result in denial of equal justice under the law," as quoted from the report's mission statement. The MBA resolutions cover five major reform areas: fees, fines and bail; conviction integrity programs; forensic lab reforms; enhanced law enforcement data collection; and police use of body-worn cameras.

The working group was assembled last year as a result of MBA President Jeffrey Catalano "stacking both section councils with superstars," whom executed the creation of this working group. The group was led by co-chairs Pauline Quirion and Beverly Chorbajian, under the direction of Civil Rights & Social Justice Section Chair Richard Cole and Criminal Justice Section Chair Georgia Critsley. Members of the group came from diverse backgrounds, including prosecutors, defense attorneys, civil rights attorneys, a Juvenile Court judge, and others. Cole said part of the group's success can be attributed to "having a great balance of professional prospective" across members.

The members of the working group split up into sub-groups that focused on each of the specific resolutions, and research was conducted by the sub-group members. They considered prior resolutions from the American Bar Association and other state bars, Brennan Center for Justice reports, a Council of State Government Justice Center report, and programs already implemented in other states, which were used as models. The sub-groups also conducted interviews with college and university professors, and professionals.

The resolutions are designed to serve as a catalyst for the criminal justice conversation and for legislation. Indeed, MBA members from the working group testified on various bills at the June 5 hearing on Beacon Hill before the Joint Committee on the Judiciary. Several of the proposals share the visions of the MBA's resolutions. MBA representatives also testified at a hearing on mandatory minimum sentences on June 19.

Catalano said the resolutions "set precedent for the MBA to be an advocate for all," because of the power of the MBA's voice. MBA Chief Legal Counsel Martin W. Healy said the MBA's advocacy efforts are generally "helpful in guiding policymakers" toward rising issues.

The MBA resolutions

Members of the working group and MBA leadership agreed that the time was right to address criminal justice reform. Chorbajian said, "There is a lack of public confidence in the current judicial system" that begged for change. She said the group hoped to sustain "fairness, reliability, and accountability in the system." Cole added that the need for reform also stems from "concerns around the denial equal of justice" in public discourse. He's hoping the resolutions achieve a level of "public awareness" so citizens know that changes are being made to strengthen the system.

The first resolution passed by the HOD prohibits incarceration for non-payment of fees or fines, as well as using alternatives to bail, suggesting robo-calls, text messaging or other technology that has proved effective in various states with similar reform. According to Cole, current laws are "inconsistent with our founding that poverty should not be the basis for imprisonment or other consequences." Therefore, the resolution stresses that poverty is not and never should be the sole reason for incarceration.

Resolution two encourages the establishment of conviction integrity programs in the commonwealth. It suggests setting up these programs in district attorneys' offices, as well as the Attorney General's Office. The integrity programs are designed to preserve the credibility of the justice system. According to Cole, who focused much of his efforts on this resolution, the word "program" refers to a larger "post-conviction review" the MBA is recommending in an attempt to "actively prevent miscarriages of justice" in the long term.

The third resolution calls for reform of the state's forensic drug labs, including mandatory lab accreditation and certification of chemists who work at the labs. This resolution was prompted by the two recent drug-lab scandals that resulted in more than 20,000 cases being dismissed. Chorbajian was "struck by the large number of people affected" and knew that recommendations had to be put in place.

The fourth resolution requires law enforcement officers - including those at colleges and universities - to collect data during traffic stops to prevent racial and gender profiling. This resolution would expand the applicability of Chapter 228 of the Laws of 2000 beyond just traffic stops to include "pedestrian stops and encounters whenever a member of the public is interrogated, frisked, or searched by a law enforcement officer." It would also mandate additional data collection and monitoring for an additional year when analysis of a law enforcement agency or departments suggests that racial profiling is occurring. Should bias be present, the resolution suggests changing practices and training to ensure profiling is no longer present. However, Cole notes, that because there is an absence of data, there is no way to determine whether this bias exists. "Data collection can help combat that," Cole says.

The fifth resolution supports the use of body-worn cameras by police officers in Massachusetts. Although legislation in this area has previously been unsuccessful, the resolution said this universal change should be considered more seriously because the use of body cameras "easily evaluates factual disputes."

At the same HOD meeting, yet unrelated to the criminal justice reform efforts, the MBA supported a sanctuary cities resolution that tells the federal government that tax dollars shouldn't be spent on their law enforcement responsibilities. Though Healy said the Legislature is unlikely to pass legislation in this area, there is a chance "municipalities may go in that direction." Catalano also spoke in support of HOD's approval of the Safe Communities act, saying it is critical "that we not take measures to intimidate witnesses based on their immigration status."

Beacon Hill debate

Just a few weeks after the MBA criminal justice resolutions were passed, representatives from the Massachusetts Bar Association's Criminal Justice Section Council testified on behalf of the MBA at two hearings before the Joint Committee on the Judiciary - both of which focused on criminal justice reform. Some of the bills dealt directly with issues addressed by the MBA's resolutions.

The first hearing took place on June 5. According to the State House News Service, the Judiciary Committee's hearing agenda included 96 bills dealing with criminal procedure. Committee co-chair Sen. Will Brownsberger said most of the testimony dealt with what he deemed the "collateral consequences" of justice system involvement, like changes to the bail system and criminal records. The MBA representatives testified on seven of the proposed bills.

Peter Elikann, former chair and current member of the MBA's Criminal Justice Section, testified in support of S. 755 (Act Restricting Fine Time Sentences) and S. 777 (Act to Reduce the Criminalization of Poverty). Regarding S. 777, he said the ability for judges to waive fines for indigent defendants who cannot afford them is on the cusp of a national trend.

Charu Amrita Verma of the Committee for Public Counsel Services, who is a member of the MBA's Criminal Justice Section Council, testified in support of S. 802 (Act Relative to Probation Surrender) and S. 827 (Act Relative to Review of Bail for Inability to Pay). She expressed the MBA's concerns with S. 834 (An Act Reforming Pretrial Process), noting its assessment tools were "too cookie cutter."

Quirion, who co-chaired the MBA's Criminal Justice Working Group, expressed the MBA's support of S. 791 (Act for Justice Reinvestment), which would repeal mandatory minimum sentences for drug offenses, end probation and parole fees, reduce the length of time before a criminal record can be sealed, create a medical parole program and raise the threshold at which larceny becomes a felony instead of a misdemeanor. She said her and her colleagues' testimony was geared towards the "MBA's concern to make sure low-income defendants' inability to pay fees and fines because of lack of income doesn't result in incarceration." Quirion, who works at Greater Boston Legal Services, also testified in support of a CORI reform proposal filed as H. 3084 (An Act Promoting Community Prosperity by Further Reforming Criminal Offender Record Information), noting that the MBA is in favor of reducing the waiting period to seal criminal records.

On June 19, MBA members again testified at the State House before the Joint Committee on the Judiciary in favor of eliminating mandatory minimum sentencing, a long-standing MBA position. Elikann was joined by Lee Gartenberg and immediate Past MBA President Robert W. Harnais - all members of the MBA's Criminal Justice Section Council.

The hearings also included testimony from other organizations focusing on various aspects of the criminal justice reform, lending credence to the notion that there is a strong appetite in the commonwealth for comprehensive change in this area.

What happens next?

When considering the next steps for the resolutions, Healy said there is no straightforward answer. Relying on his extensive experience with past HOD resolutions, Healy said, "Resolutions present their own unique path in which way they'll go." Therefore, projecting the end product of the five resolutions is difficult. "They might go into legislative form," or at the very least, "will be transmitted to policymakers" so they are aware of the MBA's concerns. "The fact that the MBA has representatives from virtually every bar association in the state speaks loudly when we put forth a position on a policy," said Healy, noting the MBA's credibility with legislators on Beacon Hill.

Healy discussed the possibility of the MBA filing their own legislation, as a product of the resolutions. The bill "could be an omnibus type of bill," or he has also considered a bill that would "tackle reforms individually." Healy mentions that, should the resolutions be pulled apart and submitted as legislation separately, it would only be to ensure the legislation isn't "such an overwhelming reform proposal" to the Legislature.

Though there is a bigger push for the passage of these resolutions now than in recent years, Healy acknowledged that "none of them are easy." He noted that "some of them will have financial implications," citing Resolution Five, mandating police-worn body cameras, as a resolution with lots of concerns and unanswered questions that could make it difficult to pass through the legislature.

Criminal justice reform has become "a priority issue" for the MBA, said Healy, who has seen an uptick in public interest over the last 10 years. President Catalano agreed, and said the MBA is not ready to back down in their efforts to push the reform forward. "Being a bystander is not what the MBA has ever been about" so there should be no expectation for the association "to kick up their heels" just because the resolutions have been passed, he said.

The MBA plans to remain on the forefront of this issue as legislation and strategies continue to progress. Catalano expects the MBA to be "at the table" when discussions about criminal justice reform take place.

"An association is only as strong as the level of interest of its membership, and we have a very vibrant, vocal and active membership base," Healy said. "We're very fortunate to have so many talented lawyers to make the MBA what it is: the preeminent voice of the legal profession."

Catalano promised that the MBA will continue to "advocate forcefully and strongly on behalf of criminal justice issues" for the people of Massachusetts. Catalano also called out to members with deep passion for criminal justice reform, and encouraged them to join the MBA's efforts, making good on his year-long theme: "Join us in leadership."

MBA Media and Communications Director Jason Scally contributed to this story.