Advocating on the Road, Learning at Home: BBA in D.C. and Chief Justice Gants at 16 Beacon

The past week or so has been busy for Government Relations.  You can read here all about the House Ways and Means Committee’s budget proposal, which was released last Wednesday and will be debated on the floor starting this Tuesday.  (Spoiler alert: You can help support amendments that have been filed to help fund civil legal aid and the judiciary.)

In addition, BBA leadership went to Washington, D.C., to take part in ABA Day last week, and SJC Chief Justice Ralph Gants spoke to the BBA Council earlier this week – both of which you can read about here…

Each year in April, representatives from state and local bar associations, as well as ABA leaders, come to D.C. from across the country to take part in ABA Day – which is really a misnomer, as it involves three days of trainings, briefings, and, most importantly, lobbying of our respective Congressional delegations.

This year, the BBA was represented by President Julia Huston and President-Elect Lisa Arrowood, who met with nine of our 11 Senators and Representatives (or in a couple of cases, their staffers).  They were there to advocate for the ABA’s two main issues this year: increased federal funding for civil legal aid through the Legal Services Corporation (LSC), and federal legislation to get smarter on crime by reducing the impact of mandatory minimum sentences for federal offenses and diverting juveniles from the justice system.

We were quite fortunate in that we found near-universal support on both of these fronts from our legislators.  It would be easy – and comforting – to assume the Massachusetts delegation is typical in this regard, but we were disabused of any such notion at a pre-lobbying breakfast briefing, where participants learned that many Congressmen have actually voted to completely de-fund LSC.

This year, President Obama is proposing to increase LSC’s appropriation from $375M to $452M, but we were warned repeatedly that any increase will face a difficult battle in a Congress that is largely disinclined to approve spending hikes.  Many of our representatives lamented the current state of relations generally in Congress, where achieving any kind of consensus is challenging at best.

Nevertheless, sentencing reform – the other main ABA Day issue – holds out the prospect of genuine bipartisan agreement.  Whether it arises from a concern that our correctional system is too costly to sustain in straitened fiscal circumstances or from a belief that public safety would be better served by a different approach toward reducing recidivism and treating substance abuse, there is a growing recognition that we are incarcerating too many people for too long.  (With only 5% of the world’s population, the U.S. has 25% of its incarcerated population.)  The possibility that a majority in Congress could coalesce around evidence-based reforms to re-think our sentencing practices was a bright spot in the discussions we had with elected officials.

On a related note, we were struck by how concerned members of Congress are about the opiate crisis in Massachusetts, as well as substance abuse and addiction generally.  Recent headlines on these issues have certainly not escaped their attention, and they are very focused on identifying practical solutions to help victims and families struggling with these problems.

Back at 16 Beacon, we heard from Chief Justice Gants, who discussed some of the things that have been keeping him busy (aside from hearing and deciding cases, of course): the budget (see above), revisions to the Code of Judicial Conduct and the Massachusetts Rules of Professional Conduct, a “menu of options” for cost-effective civil litigation, the new voir dire law, changes in disciplinary rules for clerks … and sentencing reform on mandatory minimums, on which he’s taken quite a public stand.

Like the ABA, as well as the BBA, the Chief Justice opposes these sentences generally.  In speaking to the Council, he said they result in sentences that are longer than judges think appropriate.  By giving back to judges the ability to apply “hand crafted” sentences suitable for each defendant and each case, we would be freeing up money spent now on incarceration that could instead fund rehabilitative programs, what’s known as justice reinvestment — for example, programs like specialty courts and HOPE/MORR.  The latter, currently being tried as a pilot project, applies short but swift consequences to probation violations.

The Chief Justice has called on the Legislature to drop mandatory minimums in drug sentences, leading to a public debate on the issue with Suffolk DA Dan Conley, currently the President of the MA District Attorneys’ Association.  At Council, Chief Justice Gants distributed a chart he’d compiled that shows how prison and jail populations have exploded in Massachusetts since the 1980’s, resulting in incarceration rates that are several times higher than 50 years ago, even though violent-crime rates are roughly the same as then, and property crime has declined dramatically.

The Chief Justice has also ordered an internal Trial Court review of sentencing practices.  Each department with criminal jurisdiction currently has a group looking at best practices in sentencing, and he is expecting draft reports from them Thanksgiving, with an interim report coming in May or June.

These groups are exploring all aspects of sentencing, including:

• The option of pre-trial diversion to connect defendants with treatment, services, and supervision, where appropriate, as an alternative to prosecution.
• The relative value of sentencing defendants to time in a state prison versus a house of correction.
• Use of probation – which research shows may become counter-productive if it extends too long. Furthermore, they are assessing which conditions work best – including carrots versus sticks, and the possibility of reducing a term of probation if no violations are incurred over a certain period of time.
• Analysis of social-science findings on what works best to reduce recidivism.
• Determining what is the best way to assess the risks and needs of each individual, without biases. For example, one standard factor in calculating a defendant’s risk is his or her criminal history.  Yet the same actions that land a black youth from a city in the criminal justice system might have lesser ramifications for a white, suburban youth.  So a risk/needs assessment that simply assigns a score for criminal history may indicate that the former poses a greater risk than the latter, based on identical behavior.

We will continue to follow the debate over mandatory minimums, and to support the Chief Justice in his advocacy.